U: 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


LAWS  OF  MARRIAGE  AND  DIVORCE 


THE    LAW    OF 

MAEEIAGE  aj^d  DIYORCE 

GIVING  THE    LAW   IN   ALL  THE  STATES  AND 
TERRITORIES  WITH  APPROVED  FORMS 


BY 

FRANK   KEEZER 

OF    THE    BOSTON    (MASSACHUSETTS)    BAR 


BOSTON 

WILLIAM  J.  NAGEL 

1906 


T 

Copyright,  1906, 
By  frank  KEEZER 


PREFACE. 


In  preparing  this  work  on  Marriage  and  Divorce  I  have 
endeavored  to  present  in  a  concise  manner  how  Marriage, 
the  most  important  institution  of  human  society,  may  be 
legally  entered  into  and  dissolved,  stating  the  laws  of  the 
various  States  and  citing  the  most  important  decisions  of  the 

Courts. 

FRANK  KEEZER. 

Carney  Bldg.,  Boston,  May.,  1906. 


TABLE  OF  CONTENTS 


CHAPTER  I. 


PROMISE    OF  MARRIAGE, 


1.  An  engagement  to  marry. 

2.  How  may  be  made. 

3.  How  may  be  dissolved. 


4.  What  constitutes  a  breach. 

5.  Legal  causes  for  a  breach. 

6.  Contract  of  marriage  made  on 

Sunday. 


CHAPTER  II. 


MARRIAGE. 


§    7.  In  general. 

8.  Definitions  of  marriage. 

9.  Source  of  marriage. 

10.  What  law  governs. 

11.  Mental  capacity  to  marry. 

12.  Physical  capacity  to  marry. 

13.  Marriage  of  person  when  insane. 

14.  Legal  capacity  of  parties. 

15.  Effect    of    statute    forbidding 

remarriage   of   guilty   party 
after  decree. 


16.  Pre-requisites  of  marriage. 

17.  Consent  of  parents. 

18.  Solemnization  of  marriage. 

19.  Ceremonial  marriage. 

20.  Marriage    of    minors     author- 

ized  by   judge    of    probate 
court. 
20a.  Statute    forbidding   marriage 
of  epileptics. 


CHAPTER  III. 


VALIDITY  OR    INVALIDITY  OF   MARRIAGE. 


21.  What  law  governs. 

22.  Intent  of  the  parties. 

23.  Invalid  marriage. 


§  24.  Void  and  voidable  marriage. 

25.  Incestuous   marriage. 

26.  Miscegenation. 

[  vii  ] 


TABLE    OF    CONTENTS. 


§  27.  Consanguinity  and  affinity. 

28.  Table  of  States  in  which  pro- 

hibited  marriages   are   void 
without  legal  process. 

29.  Issue  illegitimate. 

30.  Unnatural  contracts. 

31.  Children. 

32.  Table  of  nonage. 

33.  Mistaken  identity. 

34.  Fraudulent  marriage. 


§  35.  Marriage   annulment   for  pre- 
existing,  incurable   syphilis. 

36.  Compulsory   marriage. 

37.  Evading  statute  by  marrying 

in  another  State. 

38.  Innocent  party's  right  to  re- 

marry. 

39.  Guilty  party's  right  to  remarry. 

40.  Marriage  without  a  celebration. 

41.  Effect  of  intoxication  on  mar- 

riage. 


CHAPTER  IV. 


PROOF   OF    MARRIAGE, 


42.  Admissions. 

43.  Circumstantial  evidence. 

44.  Cohabitation. 

45.  Cohabitation  as  proof  of  mar- 

riage when  it  begins  unlaw- 
fully. 

46.  Confessions. 

47.  Eyewitnesses. 

48.  Marriage  certificates. 


49.  Records. 

50.  Repute. 

51.  Testimony  of  persons  officiat- 

ing. 

52.  Necessity  of  proof  of  marriage- 

53.  Proof  of  foreign  marriage. 

54.  Presumptions     flowing     from 

marriage  ceremony. 


CHAPTER  V. 
NULLITY   OF  MARRIAGE. 


.55.  Distinction  between  "divorce" 

and  "nullity." 
56.  Jurisdiction  of  nullity  suits. 


§  57 


.')/.  Parties  to  nullity  suits. 

58.  Delay  in  bringing  suit. 

59.  Grounds     for     annulment     of 

marriage. 


CHAPTER  VI. 

DIVORCE    IN    GENERAL. 


60.  Legislative  divorces. 

61.  Judicial  divorces. 

62.  Absolute    divorce    (a 

matrimonii). 
[  viii  ] 


vinculo 


63.  Partial    divorce    (a    mensa    et 

thoro) . 

64.  Legal  separation. 

65.  Deeds  of  separations. 


TABLE    OF   CONTENTS. 

CHAPTER  VII. 

ADULTERY. 


66.  Adultery  as  a  ground  for  di- 

vorce. 

67.  The  act  must  be  voluntary. 

68.  Particeps    criminis    must    be 

named  if  known. 

69.  Appearance  of  particeps  crimi- 

nis. 

70.  Circumstantial  evidence. 

71.  Adulterous    disposition. 

72.  Opportunity. 

73.  Keeping  concubine. 

74.  Evidence  of  private  detective. 

75.  Entering  house  of  ill-fame. 

76.  Venereal  disease  as  evidence. 

77.  Evidence  and  letters  of  para- 

mour. 

78.  Confessions  must  be  corrobo- 

rated. 

79.  Connivance. 

80.  Connivance  should  be  pleaded. 


§  81.  Connivance    is    frequently    a 

good  defence. 
Evidence    of    prostitutes    and 

pimps. 
Reputation  for  chastity. 
Evidence   of  familiarities. 

85.  .\dulterj'  by  force. 

86.  Mistake  of  law. 
Mistake  of  fact. 
Separation  by  consent  no  bar 

to  suit  for  adultery. 
Knowledge  of  adultery. 
Amendment  to  libel  or  petition. 
Effect  of  divorce  for  adultery 

on  legitimacy  of  children. 

92.  Non-access. 

93.  Specifications  of  adultery. 

94.  Record  of  conviction. 


82. 

83. 
84. 


87. 


89. 
90. 
91. 


CHAPTER  VIII. 


BIGAMY. 


§  95.  General  rule. 

96.  Prior  marriage  must  have  been 

valid. 

97.  Unheard  of  for  years. 

98.  Defence  of  unheard  of  absence 

for  statutory  period. 


§  99.  Meaning    of    the    term  "co- 
habitation." 

100.  Legitimacy  of  children. 

101.  Remarriage   before  decree  is 

made  absolute. 

102.  Evidence  of  bigamy. 

103.  Proof  of  marriage. 


[ix] 


TABLE    OF   CONTENTS. 


CHAPTER  IX. 


CRUELTY. 


§  104.  General  rule  as  to  degree  of 
cruelty. 

105.  Actual  personal  violence. 

106.  Reasonable   apprehension    of 

violence. 

107.  Treatment  endangering  health. 

108.  Treatment  endangering  life. 

109.  Communicating  disease. 

110.  Denial  of  sexual  intercourse. 


111. 
112. 
113. 
114. 
115. 

116. 


Abuse  of  sexual  intercourse 
Mental  suffering. 
False  accusations  and  threats. 
Masturbation  not  cruelty. 
Drunkenness   no    defence    to 

cruelty. 
Mutual  cruelty  or  family  jars. 


CHAPTER  X. 

CONVICTION    OF    CRIME. 


117.  General  rule. 

118.  Imprisonment  in  foreign  State. 

119.  Necessity  of  conviction. 


§  120.  Effect   of   pardon   after   sen- 
tence. 
121.  Marriage  of  a  criminal  pend- 
ing appeal. 


CHAPTER  XL 


HABITUAL   DRUNKENNESS. 


122.  Use  of  alcoholic  liquors. 

123.  Use  of  opium  or  other  drugs. 

124.  Habitual      drunkenness      de- 

fined. 

125.  Degree  of  dnmkenness. 

1 26.  Dipsomaniacs.  •- 

127.  Court  records. 

128.  Necessity  of  conviction. 


§  129.  Complainant    furnishing    liq- 
uor. 

130.  Periodical  debauches. 

131.  Occasional  intoxication. 

132.  Knowledge  of  drunkenness  at 

time  of  marriage. 

133.  Habitual  intemperance. 


134. 
135. 


CHAPTER  XII. 

DISCRETIONARY    C.\USES. 


In  general. 
Rhode  Island. 

[x] 


§  136.  Washington. 


TABLE    OF   CONTENTS. 

CHAPTER  XIII. 


DESERTION. 


Definition  of  desertion. 

Desertion   must   be   continu- 
ous. 
139.  Intention  to  desert. 

Intention  to  desert  must  be 
wilful. 

Cohabitation    must    actually 
cease. 

Constructive  desertion. 
143.  Separation  by  mutual  consent 
is  not  desertion. 

Desertion  where  both  parties 
dwell  under  same  roof. 

Refusal  to  leave  native  coun- 
try. 


137 
138 


140. 


141. 


142. 


144. 


145. 


146.  Refusal  to  cohabit. 

147.  Refusal    to    renew    cohabita- 

tion, 

148.  Refusal  to  follow  husband. 

149.  Refusal  to  follow  wife. 

150.  Husband's   liability   for   sup- 

port of  wife. 
1.51.  Posting  wife. 

152.  Desertion  is  not  excused  by 

continuing  support. 

153.  Presumption  of  death. 

154.  Refusal  of  sexual  intercourse. 


CHAPTER  XIV. 

FRArD,    DURESS    AND    MISTAKE. 


155.  Fraud. 

156.  Fraudulent  contract. 

157.  Duress. 


§  158.  Mistake. 

159.  Antenuptial   intercourse. 


CHAPTER  XV. 


IMPOTENCY. 


§  160.  In  general. 

161.  Knowledge  of  defect. 

162.  Cause  of  impotency. 

163.  Advanced  age. 

164.  Existence    at    time    of    mar- 

riage. 

165.  Natural  impotency. 

166.  Temporal  impotency. 

167.  Curable  impotency. 


§  168 


The  defect  must   be  one   of 
copulation. 

169.  Burden  of  proof. 

170.  Absence  of  sexual  intercourse. 
Examination    of    defendant's 

person. 
Refusal  to  submit  to  exami- 
nation. 

173.  Impotency  must  be  alleged. 

174.  Time  of  instituting  proceed- 

ings. 

[xi] 


171. 


172. 


TABLE    OF   CONTENTS. 

CHAPTER  XVI. 

INSANITY. 


175.  In  general. 

176.  Degree  of  insanity. 

177.  Collateral   attack. 


§  178.  Insanity  after  marriage. 
179.  An     insane     person     cannot 
bring  libel. 


CHAPTER  XVII. 


REFUSAL   TO   SUPPORT. 


§  180.  In  general. 

181.  Wife  able  to  support  herself. 

182.  Physical  weakness. 


§  183.  Pecuniary  ability. 

184.  Squandering  wife's  property. 


CHAPTER  XVIII. 

EXCEPTIONAL   CAUSES, 


185.  Sodomy. 

186.  Crime  against  nature. 

187.  Immoral  or  criminal  conduct. 

188.  Fleeing  from  justice. 

189.  Gross  neglect  of  duty. 


§  190.  Joining  Shakers  or  like  soci- 
eties. 

191.  Indignities. 

192.  Defamation  of  character. 

193.  Living  apart  for  years. 


CHAPTER  XIX. 


JURISDICTION. 

194. 

Courts  having  jurisdiction. 

§  200. 

195. 

Domicil  as  basis  of  jurisdic- 
tion. 

201. 

196. 

Change  of  domicil. 

202. 

197. 

Domicil  defined. 

203. 

198. 

Locus  of  cause. 

204. 

199. 

Residence    not    sufficient    to 
confer  jurisdiction, 
[xii] 

Residence  of  parties  to  suit. 

Different  domicil  for  hus- 
band and  wife. 

Acquired  jvirisdiction. 

Jurisdiction  by  appearance. 

Jurisdiction  of  chancery  to 
decree  nullity  of  marriage. 


TABLE    OF   CONTENTS. 

CHAPTER   XX. 

PASTIES. 


205.  Who  may  be  plaintiffs. 

206.  Who  are  proper  defendants. 

207.  Incompetency  of  parties. 


§  208.  Incompetent  defendants  and 
guardians. 

209.  Legal  status  of  wife  as  a  party. 

210.  Intervening  parties. 


CHAPTER   XXI. 


PLEADINGS  AND  PROCEEDINGS  FOR  DIVORCE. 


211.  Venue. 

212.  Drawing  libel. 

213.  Who  may  sign  libel. 

214.  Verification  of  libel. 

215.  Any  number  of  causes  may  be 

inserted. 

216.  Entry  and  order  of  notice. 

217.  Who  may  serve  process. 

218.  Personal  service. 

219.  Notice  by  publication  or  con- 

structive notice. 

220.  Notice  by  registered  letter. 

221.  Personal    service    outside    of 

state. 


§  222.  Acceptance  of  service. 
22.3.  Identifying  witness. 

224.  Proof  of  service. 

225.  Validity   of   decree   obtained 

on  publication  or  service 
outside  of  the  state  where 
defendant  did  not  appear. 

226.  Regularity  in  service. 

227.  Criminal  provisions. 

228.  Contingent     fee     in     divorce 

cases. 

229.  Amenability     to     charge     of 

libel. 


CHAPTER    XXII. 


INTERMEDIATE  PROCESS. 


230.  Cross-bill,  libel,  or  petition. 

231.  Contest  by  guardian. 

232.  Amendments    discretionary. 

233.  Interlocutory  orders. 


§  234.  Interlocutory  decrees. 

235.  Protection    of    wife    pending 

suit. 

236.  Bill  of  particulars. 

[  xiii  ] 


TABLE   OF   CONTENTS. 

CHAPTER    XXIII. 

EVIDENCE. 


237.  Burden  of  proof  in  general. 

238.  Pleadings  as  evidence. 

239.  Parties  as  witnesses. 

240.  Domicil  and  residence. 

241.  On  plea  of  jurisdiction. 

242.  Presumption  in  general. 


§  243.  Evidence  of  libellee. 

244.  Corroboration. 

245.  Degree  of  proof. 

246.  Depositions. 

247.  Records  of  conviction. 

248.  Evidence  of  young  children. 


CHAPTER   XXIV. 


DEFENCES. 


249.  Collusion. 

250.  Condonation. 

251.  Revival  of  condoned  offence. 

252.  Delay  in  bringing  suit. 

253.  Recrimination. 

254.  Mistake. 


§  255.  Notice  of  grounds. 

256.  Insanity. 

257.  Dmnlcenness. 

258.  Provocation. 

259.  Justification  or  excuse. 

260.  Invalidity  of  marriage. 


CHAPTER    XXV. 


DECREES. 


261.  Dismissal  of  libel. 

262.  General  dismissal  as  bar  to 

subsequent  libel. 

263.  Dismissal  without  prejudice. 

264.  Decree  of  nullity. 

265.  Decree  of  affirmation. 

266.  Decree  a  vinculo  matrimonii. 

267.  Decree  nisi. 

[xiv] 


§  268.  Decree  a  mensa  et  thoro. 

269.  Divorced    woman's   right    to 

resume  her   maiden  name 
or  name  of  former  husband. 

270.  Separate  support  and  main- 

tenance. 

271.  Restrictions  against  marrying 

after  divorce. 


TABLE   OF   CONTENTS. 


CHAPTER    XXVI. 


ALIMONY. 


272.  In  general. 

273.  Duty  of  husband  to  support 

wife. 

274.  Marriage    as    pre-requisite. 

275.  Alimony    is    allowed    in    aU 

states. 

276.  Manner  of  awarding  alimony. 

277.  Discretion  of  court. 

278.  Permanent  alimony. 

279.  Alimony  pendente  lite. 

280.  Alimony  in  nullity  suits. 

281.  Alimony  under  common-law 

marriage. 

282.  Counsel  fees. 

283.  Liability  of  husband  and  wife 

for  legal  services  to  wife  in 
divorce  suit. 

284.  Alimony  allowed  without  di- 

vorce proceedings. 

285.  Liability  of   non-resident  de- 

fendant. 

286.  Husband's  right  to  alimony. 

287.  Prayer  for  alimony. 

288.  Attachment      of      husband's 

property. 

289.  How     attachment     may     be 

made. 

290.  Husband's  income. 

291.  Husband's  ability. 

292.  Conduct   of  parties. 

293.  Both  parties  at  fault. 

294.  Wife  at  fault. 

295.  Separation  by  mutual  agree- 

ment. 

296.  Husband  living  in  adultery. 

297.  Abandonment  of  wife. 

298.  Cruelty  to  wife. 

299.  Husband's  resources. 

300.  Condition  of  family. 

301.  Necessity    of    separation    of 

parties. 

302.  Previous  provision  for  wife's 

support. 


303.  Alimony  pending  appeal. 

304.  Husband's  denial  under  oath 

of  grounds  of  divorce. 

305.  Wife's  property  or  income. 

306.  Allowance  of  gross  sum. 

307.  Wife  as  creditor  after  decree 

for  alimony. 

308.  Requiring    husband    to    dis- 

close on  oath. 

309.  Reference  to  master. 

310.  Reference  to  arbitrator. 

311.  Surety   for   payment    of   ali- 

mony. 

312.  Decree  of  alimony  as  lien. 

313.  Enforcement    of    decree    for 

alimony, 
(a)  Making  decree  a  lien  on 

real  estate. 
(6)  Issuance   of   attachment. 

(c)  Issuance  of  execution. 

(d)  Appointment  of  receiver. 

(e)  Requirement  of  security. 
(/)  Issuance  of  injunction, 
(gf)  Issuance    of    writ    of    ne 

exeat. 
(h)  Imprisonment    for    con- 
tempt. 

314.  Successive  executions. 

315.  Oath  for  poor  debtors. 

316.  Appointment    of    trustee    of 

wife's  property. 

317.  Modification    of    decree    for 

alimony. 

318.  Termination  of  alimony. 

319.  Reconciliation. 

320.  Effect    of   -nife's    subsequent 

adultery   upon   alimony. 

321.  Nature  of  contempt  proceed- 

ings to  compel  payment  of 
alimony. 
3210.  Sister    state    may    enforce 
payment. 

[XV] 


TABLE    OF   CONTENTS. 

CHAPTER    XXVII. 

CUSTODY   OF   CHILDREN. 


§  322.  Jurisdiction    of   court. 

323.  Fitness  of  parents. 

324.  Custody  pending  divorce  pro- 

ceedings. 

325.  Grounds  for  award. 


§  326.  Agreement    of    parties 
access  to  child. 

327.  Modification  of  award. 

328.  Preference  of  children. 

329.  Support  of  children. 


and 


CHAPTER    XVIII. 


VACATING   DECREES. 


330.  General  rule. 

331.  Petition  to  vacate. 

332.  Who  may  bring  petition. 

333.  Impersonation. 

334.  False  testimony. 

335.  Collusion. 

336.  Decree  vacated  after  subse- 

quent marriage. 

337.  Laches  in  vacating  decree. 

338.  Decree  under  repealed  statute. 


§  339.  Declaring  decree  of  other 
state  void  not  unconstitu- 
tional. 

340.  Objection  to  decree  nisi  be- 

coming absolute. 

341.  Death  of  either  party  not  a 

bar. 

342.  By    the    court    on    its    own 

motion. 


CHAPTER    XXIX. 


EFFECT  OF  DIVORCE  ON  PROPERTY  RIGHTS. 


343.  Partial  and  absolute  divorce. 

344.  Rights  of  husband. 

345.  Rights  of  wife. 

346.  Marriage  settlement. 

347.  Rights  in  property. 

[xvi] 


§  348.  Divorce    as    affecting    wife's 
right  to  insurance  upon  her 
husband's  life. 
349.  Effect   of  divorce  on   home- 
stead right. 


TABLE    OF    CONTENTS. 

CHAPTER  XXX. 


FOREIGN    DIVORCES. 


350.  Validity  of  a  divorce  granted 

in  another  state. 

351.  Validity  of  a  divorce  granted 

in  a  foreign  country. 

352.  Rights  under  foreign  alimony 

decree. 


§  353.  Marriage    under    foreign    di- 
vorce. 

354.  Foreign  decrees  as   to  prop- 

erty. 

355.  Prohibition  of  remarriage. 


Synopsis  of  the  Marriage  laws  of  the  States  and  Territories. 
Synopsis  of  the  Divorce  laws  of  the  States  and  Territories. 
Approved  Forms  with  Index. 
Statistics  of  Marriage  and  Divorce. 

Appendix. 
Case  of  Haddock  v.  Haddock,  reprinted  in  full  and  annotated. 
Table  of  Cases. 
Index. 


[xvii  ] 


THE  LAW  OF 

MARRIAGE  AND   DIVORCE 


CHAPTER  I. 

PROMISE    OF   MARRIAGE. 


1.  An  engagement  to  marry. 

2.  How  may  be  made. 

3.  How  may  be  dissolved. 

4.  What  constitutes  a  breach. 


§  5.  Legal  causes  for  a  breach. 
6.  Contract  of  marriage  made  on 
Sunday. 


§  1.     An  engagement  to  marry. 

An  engagement  to  marry  is  an  executory  contract;  it  is 
something  to  be  executed  in  the  future,  and,  lil^e  all  executory 
contracts,  it  is  binding  only  on  persons  of  full  age.^ 

§  2.    How  may  be  made. 

A  contract  of  marriage  may  be  made  by  mutual  agreement 
of  a  man  and  woman  of  lawful  age  who  have  sufficient  intellect 
to  understand  the  nature  of  the  contract  and  who  are  free 
from  any  impediment.^  But  it  must  appear  that  the  parties 
actually  intended  matrimony  and  not  an  illicit  relation.  The 
agreement  must  show  that  the  parties  intended  to  be  hus- 
band and  wife.^  Both  parties  must  consent  to  the  marriage."* 
There  must  always  be  an  offer  of  marriage  and  an  acceptance ; 
and  the  acceptance  must  be  within  a  reasonable  time.    The 

1  Poole  V.  Pratt,  1  D.  Chipman  (Vt.),  252.     See  also  infra,  p.  22. 

2Munson  v.  Hastings,  12  Vt.  346,  36  Am.  Dec.  345. 

3  Letters  v.  Cady,  10  Cal.  533;  Clancy  v.  Clancy,  66  Mich.  202,  33  N.  W. 


*McClurg  V.  Teny,  21  N.  J.  Eq.  225. 
1 


[1] 


§3.]  THE   LAW   OF   MARRIAGE  AND   DIVORCE.        [CHAP,    I. 

agreement  must  be  mutual.^  The  offer  need  not  be  made  in 
any  particular  form  or  language.  It  is  sufficient  if  both  par- 
ties understand  it  to  be  an  offer  of  marriage.^  Again,  the 
offer  may  be  made  by  a  third  person  authorized  for  the  pur- 
pose.^ But  in  order  to  bind  both  parties,  there  must  be  an 
acceptance  of  the  offer,  a  promise  in  return.^  After  the  offer 
is  once  made,  if  accepted  within  a  reasonable  time  and  before 
the  offer  is  withdrawn,  the  agreement  is  complete.^  But  the 
acceptance  must  be  made  known  to  the  other  party. ^° 

§  3.     How  may  be  dissolved. 

An  engagement  to  marry  may  be  dissolved  by  death,  mutual 
consent  of  the  parties,  or  for  any  incapacity  such  as  infancy,  ^^ 
impotency  of  either  party,  ^^  or  marriage  within  prohibited 
degrees. ^^  And  one  cannot  make  a  binding  promise  to  a 
future  marriage  conditioned  upon  his  or  her  obtaining  a 
divorce  or  a  dissolution  of  the  marriage  by  death. ^^  And 
where  the  guilty  party  has  been  forbidden  by  the  court  to 
remarry  during  the  lifetime  of  the  petitioner,  the  agreement 
is  invalid,  and  no  action  will  lie  for  a  breach  of  the  promise, 
for  there  is  a  legal  incapacity.^^ 

sBaird  v.  People,  66  111.  App.  671. 

eVanderpool  v.  Richardson,  52  Mich.  336,  17  N.  W.  936;  Homan  v. 
Earle,  53  N.  Y.  267. 

7  Prescott  V.  Guyler,  32  111.  323. 

8  Espy  V.  Jones,  37  Ala.  379;  Adams  v.  Byerly,  123  Ind.  368, 24  N.  E.  130; 
Thurston  v.  Cavenor,  8  Iowa,  155;  Kelley  v.  Riley,  106  Mass.  339;  Cole  v. 
Holliday,  4  Mo.  App.  94;  Yale  v.  Curtiss,  151  N.  Y.  598,  45  N.  E.  1125; 
Conrad  v.  Williams,  6  Hill  (N.  Y.),  444;  Weaver  v.  Bachert,  2  Pa.  St. 
80,  44  Am.  Dec.  159. 

B  Veneall  v.  Veness,  4  F.  &  F.  344. 

10  Graham  v.  Martin,  64  Ind.  567;  Russell  v.  Cowles,  81  Mass.  582,  77  Am. 
Dec.  391;  Green  v.  Spencer,  3  Mo.  318,  26  Am.  Dec.  672. 

"  Reish  V.  Thompson,  55  Ind.  34;  Frost  v.  Vought,  37  Mich.  65. 

i2Gulick  V.  Guhck,  41  N.  J.  L.  13. 

13  Paddock  v.  Robinson,  63  111.  99,  14  Am.  Rep.  112;  Drennan  v.  Douglas, 
102  111.  341,  40  Am.  Rep.  595. 

"Noice  V.  Brown,  39  N.  J.  L.  133,  23  Am.  Rep.  213. 

"Van  Voorhis  v.  Brintnall,  86  N.  Y.  18,  40  Am.  Rep.  505. 

[2] 


CHAP.  I.]  PROMISE  OF  MARRIAGE.  [§  4. 

g  4.     "What  constitutes  a  breach. 

A  refusal  by  either  party  without  just  cause  to  enter  into 
the  celebration  at  the  time  agreed  upon  constitutes  a  breach 
of  the  promise  to  marry,  and  is  considered  in  law  to  be  a  breach 
of  a  contract,  and  an  action  will  lie  for  damages,  even  though 
one  of  the  parties  is  married  at  the  time  of  the  engagement, 
if  he  or  she  represented  himself  or  herself  as  single  and  the 
innocent  party  believed  him  or  her  to  be  such,^^  And  in 
determining  whether  there  was  a  promise  of  marriage,  the 
jury  have  a  right  to  infer  it  from  the  conduct  and  behavior 
of  the  parties,  as  contracting  parties  are  always  presumed  to 
intend  what  their  conduct  fairly  indicates.^'  But  the  weight 
of  authority  holds  that  if  the  contract  is  not  to  be  performed 
within  a  year  after  the  promise,  the  contract  must  be  in 
writing,  ^^ 

§  5.     Legal  causes  for  a  breach. 

An  engagement  to  marry  may  be  legally  broken  for  causes 
which  would  not  be  a  ground  for  granting  a  divorce  or  an- 
nulling a  marriage.  For  example,  if  after  the  engagement 
either  party  should  discover  that  at  the  time  of  the  engage- 
ment the  other  was  unchaste,  the  engagement  may  be  broken, 
and  such  unchastity  is  a  good  defence  to  a  claim  for  damages. 
It  is  legally  as  well  as  morally  a  justification  for  breaking  the 
engagement,  for  the  engagement  is  the  result  of  the  false  and 
fraudulent  representations  of  one  of  the  parties  to  the  exec- 
utory contract  in  reference  to  his  or  her  character.  So,  a 
false  and  fraudulent  representation  of  one  of  the  parties  in 
regard  to  his  or  her  wealth,  rank,  or  social  position  would  be  a 

18  Pollock  V.  Sullivan,  53  Vt.  507,  38  Am.  Rep.  702. 

"Adams  v.  Byerly,  123  Ind.  368,  24  N.  E.  130;  Dean  v.  Skiff,  128 
Mass  174;  Kelly  v.  Riley,  106  Mass.  339;  Ray  v.  Smith,  75  Mass.  141; 
Wightman  v.  Coates,  15  Mass.  1,8  Am.  Dec.  77;  Hoitt  v.  Moulton,  21  N.H. 
586;  Wagenseller  v.  Simmers,  97  Pa.  St.  465;  Whitcomb  v.  Wolcott,  21 
Vt.  368. 

18  Clark  V.  Pendleton,  20  Conn.  495;  Nichols  v.  Weaver,  7  Kan.  373; 
Lawrence  v.  Cooke,  56  Me.  187;  Derby  v.  Phelps,  2  N.  H.  515. 

[3] 


§  6.]  THE  LAW  OF     MARRIAGE   AND  DIVORCE.        [CHAP.  I. 

sufficient  ground  for  a  breach  of  the  contract  and  a  good  de- 
fence to  a  claim  for  damages.  But  such  representations  would 
not  affect  the  legality  of  the  marriage.  The  Supreme  Court  of 
Massachusetts  says:  "We  think  that  it  is  well  settled  that 
fraud  of  such  kind  in  its  essential  elements  as  would  invalidate 
an  ordinary  contract,  is  a  good  defence  to  an  action  upon  a 
contract  to  marry."  ^^  Again  a  man  is  justified  in  breaking  an 
engagement  to  marry  if  he  is  afflicted  with  an  incurable  disease, 
such  as  syphilis,  which  has  reappeared  without  any  new  fault 
on  his  part  after  making  the  engagement,  where  he  believed 
himself  at  that  time  to  be  entirely  cured  and  in  sound  health.^" 

§  6.     Contract  of  marriage  made  on  Sunday. 

As  a  rule,  contracts  made  on  Sunday  are  voidable  but  this 
does  not  apply  to  an  engagement  to  marry  or  a  marriage 
ceremony.  "A  contract  of  marriage  under  our  law  is  a  purely 
civil  contract.  Nothing  is  added  to  its  legal  force  or  obliga- 
tion by  entering  into  it  with  religious  rites  or  ceremonies. 
Yet  no  one  would  contend  that  it  would  be  unlawful  for  a 
civil  magistrate  to  complete  the  execution  of  such  a  contract 
by  joining  parties  in  matrimony  on  the  Sabbath,  or  that  a 
contract  of  marriage  entered  into  before  and  solemnized  by  a 
magistrate  would  be  invalid  because  the  act  was  done  on  the 
Lord's  day.  The  reason  is  obvious.  Such  an  act  does  not 
come  within  the  category  of  transactions  which  are  connected 
with,  or  appertain  to,  ordinary  worldly  business.  It  is  neither 
labor,  business,  nor  work  in  the  sense  in  which  these  words 
are  used  by  the  legislature."  ^i 

IB  Smith  V.  Smith,  171  Mass.  406,  50  N.  E.  933,  68  Am.  St.  Rep.  440, 
41  L.  R.  A.  800. 

20  Schakelford  v.  Hamilton,  93  Ky.  80,  19  S.  W.  5,  15  L.  R.  A. 
531  and  note. 

21  Bennett  v.  Brooks,  91  Mass.  118,  122.  See  also  Bloom  v.  Richards, 
2  Ohio  St.  387. 


[4] 


CHAP.  II.] 


MARRIAGE. 


[§7. 


CHAPTER  II. 


MARRIAGE. 


7.  In  general. 

8.  Definitions  of  marriage. 

9.  Source  of  marriage. 

10.  What  law  governs. 

11.  Mental  capacity  to  marry. 

12.  Physical  capacity  to  marrj'. 

13.  Marriage  of  person  when  insane. 

14.  Legal  capacity  of  parties. 

15.  Effect    of    statute    forbidding 

remarriage   of  guilty   party 
after  decree. 


§  16.  Pre-requisites  of  marriage. 

17.  Consent  of  parents. 

18.  Solemnization  of  marriage. 

19.  Ceremonial  marriage. 

20.  Marriage    of    minors     author- 

ized   by    judge    of    probate 
court. 
20a.  Statute    forbidding   marriage 
of  epileptics. 


§  7.     In  general. 

Marriage  is  not  a  mere  contract.  It  cannot  be  rescinded 
by  either  party  or  both  at  their  desire,  for  its  conditions  are 
fixed  by  law.  Certain  forms,  ceremonies,  or  conditions  must 
be  compUed  with  before  it  is  valid.  Not  only  are  the  parties 
themselves  interested  but  the  state  and  the  commimity. 
Some  claim  that  marriage  is  of  divine  origin,  others  that  it 
is  the  natural  outgrowth  of  society.  While  the  law  does  not 
expressly  recognize  its  religious  character  it  does  recognize 
it  as  the  most  important  of  domestic  relations.  It  is  the 
source  of  the  family,  the  safeguard  of  public  and  private 
morals,  the  strength  of  the  nation,  and,  whenever  the  general 
law  of  contracts  conflicts  with  the  stability  and  purity  of 
marriage,  its  character  as  a  contract  is  held  subordinate  to 
its  character  as  a  domestic  relation.  And  while  the  consti- 
tution of  the  United  States  expressly  states  that  no  state  shall 
pass  any  law  impairing  the  obligation  of  a  contract,  it  is  held 
by  a  great  majority  of  decisions  that  marriage  is  not  a  Con- 
tract in  the  sense  in  which  the  word  "contract"  is  there  used, 

[5] 


§  9.]  THE   LAW   OF    MARRIAGE   AND   DIVORCE.      [CHAP.  II. 

and  the  provision  does  not  apply  to  the  law  of  marriage  and 
divorce.     Marriage  is  a  legal  status.^ 

§  8.     Definitions  of  marriage. 

A  legal  marriage  is  a  union  of  a  man  and  woman  in  the 
lawful  relation  of  husband  and  wife,  whereby  they  can  cohabit 
and  rear  legitimate  children.^ 

Sir  William  Blackstone  says  that  :  "  Our  law  considers  mar- 
riage in  no  other  light  than  a  civil  contract.  The  holiness  of 
the  matrimonial  state  is  left  entirely  to  ecclesiastical  law. 
Such  a  contract  is  good  and  valid,  if  the  parties  were,  at  the 
time  of  making  it,  willing  to  contract,  able  to  contract,  and  act- 
ually did  contract,  in  the  proper  forms  and  solemnities  re- 
quired by  law."  ^ 

Dole  says  that:  ''Marriage  is  a  contract  between  two  com- 
petent persons  of  opposite  sex  to  live  together  for  life,  subject 
to  such  laws  as  do  and  may  govern  the  relation  of  husband 
and  wife."  ^ 

Bishop  says:  ''Marriage  is  a  civil  status  of  one  man  and  one 
woman  united  in  law  for  life,  under  the  obligation  to  discharge, 
to  each  other  and  the  community,  those  duties  which  the 
community  by  its  laws  hold  incumbent  on  persons  whose 
association  is  founded  on  the  distinction  of  the  sex."^ 

§  9.     Source  of  marriage. 

Marriage  is  universal;  it  is  founded  on  the  law  of  nature. 
The  essence  of  marriage  is  sexual  union  and  should  be  pure, 
and,  for  this  reason,  the  law  favors  and  encourages  marriage 

1  Wade  V.  Kalbfleish,  58  N.  Y.  282,  17  Am.  Rep.  250;  Ditson  v.  Ditson, 
4  R.  I.  87;  Maynard  v.  Hill,  125  U.  S.  190,  31  L.  ed.  654. 

2  Duntze  v.  Levett,  Facility  Decisions,  1816,  p.  139. 

3  Hull  V.  Hull,  2  Strobh.  Eq.  (S.  C.)  174;  Duke  v.  Fulmer,  5  Rich.  Eq. 
(S.C.)  121. 

4E.  P.  Dole's  Talks  About  Law,  113. 

6  Bishop,  Marriage  and  Divorce,  §1.  See  also  McCabe  v.  Berge,  89 
Ind.  225. 

[61 


CHAP.  II.]  MAERIAGB.  [§  10. 

and  frowns  at  divorce.    Marriage  in  its  origin  is  a  contract 
of  natural  law;  it  is  the  parent  of  civil  society .° 

§  10.     What  law  governs. 

The  law  of  the  domicil  of  the  parties  controls  in  all  ques- 
tions which  depend  upon  their  capacity  to  contract  marriage.'' 

§  11.     Mental  capacity  to  marry. 

No  insane  person  or  idiot  is  capable  of  contracting  a  mar- 
riage. An  engagement  to  marry  being  an  executory  con- 
tract, it  requires  the  intelHgent  assent  of  both  parties,  and  a 
person  lacking  in  mental  capacity  to  understand  the  nature 
of  the  marriage  agreement  is  incapable  of  entering  the  mar- 
riage status.^  But  if  a  person  who  is  insane  at  the  time  of 
marriage,  afterward,  at  lucid  intervals,  acquiesces  in  the 
marital  state  no  decree  of  annulment  will  be  granted.^ 

§  12.     Physical  capacity  to  marry. 

Incurable  impotency  at  the  time  of  marriage  and  existing 
at  the  time  of  filing  the  libel  is  a  ground  for  annulment.^'' 

§  13.     Marriage  of  person  when  insane. 

A  marriage  with  a  person  who  has,  in  appropriate  proceed- 
ings, been  found  to  be  mentally  imbecile,  is  absolutely  void 
ah  initio,  and  can  be  at  any  time  so  declared  by  the  court. 
A  guardian  of  a  lunatic  cannot  be  removed  in  an  ex  parte 
proceeding  in  which  no  notice  is  served  on  him.  A  marriage 
void  on  account  of  lunacy  cannot  be  cured  merely  by  co- 
habitation after  restoration.  The  guardian  of  a  lunatic  may 
bring  an  action  to  have  her  marriage,  solemnized  after  she 
was  declared  insane,  set  aside.  Receipt  and  confirmation  of 
the  report  of  a  jury  finding  lunacy  as  required  by  statute  will 

6  Banks  v.  Galbraith,  149  Mo.  529,  51  S.  W.  105. 

7  Kenney  v.  Com.,  30  Gratt.  (Va.)  858. 

8  Middleborough  v.  Rochester,  12  Mass.  363. 

9  Cole  V.  Cole,  5  Sneed  (Tenn.),  57,  70  Am.  Dec.  275. 
10  See  Impotency,  infra  p.  84. 

[7] 


§  14.]  THE  LAW  OF   MARRIAGE   AND    DIVORCE.        [CHAP.  II. 

be  presumed  if  the  clerk  acts  on  it  by  appointing  a  guardian." 
But  in  the  absence  of  statute  the  court  will  not  grant  a  divorce 
for  insanity  arising  after  marriage,  as  the  court  can  grant  a 
divorce  to  the  injured  party  only  where  the  other  party  is  a 
wrongdoer.  ^^ 

§  14.     Legal  capacity  of  parties. 

Aside  from  the  consideration  of  the  mental  and  physical  ca- 
pacity of  the  parties,  there  are  incapacities  which  are  created 
by  law  which  are  based  upon  claims  of  public  policy.  The 
prohibition  of  persons  of  different  races  marrying,  which  creates 
a  sort  of  racial  incapacity,  is  treated  under  the  subject,  Mis- 
cegenation, in  another  section. ^^  The  incapacity  of  persons 
within  certain  degrees  of  relationship  is  treated  under  the 
subject  of  Consanguinity  and  Affinity.^'*  The  age  at  which 
persons  are  considered  to  be  capable  of  entering  marriage  is 
based  on  statute  and  varies  in  the  different  states. ^^  Legal 
capacity  also  includes  the  question  of  the  legal  condition  of 
the  parties  as  the  result  of  a  former  marriage  or  divorce.  If 
either  party  is  already  married  and  such  marriage  has  never 
been  absolutely  dissolved,  there  is  a  legal  incapacity  to  marry  re- 
gardless of  the  good  faith  of  one  or  the  other  of  the  parties.^^ 
Even  though  there  may  have  been  a  divorce  entered  which 
was  afterward  vacated  for  fraud  or  other  reason,  the  second 
marriage  will  be  void,  and  the  issue  rendered  illegitimate." 

"  Sims  V.  Sims,  121  N.  C.  297,  40  L.  R.  A.  737  and  note,  61  Am.  St. 
Rep.  665. 

12  Curry  v.  Curry,  1  Wils.  (Ind.)  236. 

13  See  infra,  p.  18. 
1*  See  infra,  p.  19. 

15  See  Table  of  Nonage,  infra,  p.  22. 

16  Brown  v.  BrowTi,  142  111.  409,  32  N.  E.  500;  Adams  v.  Adams,  154 
Mass.  290,  28  N.  E.  260,  13  L.  R.  A.  275,  and  note;  Moors  v.  Moors,  121 
Mass.  232;  Glass  v.  Glass,  114  Mass.  563;  Morrill  v.  Palmer,  68  Vt.  1,  33 
Atl.  829,  33  L.  R.  A.  411. 

"  In  re  Cook  77  Cal.  220, 17  Pac.  923,  19  Pac.  431,  1  L.  R.  A.  567;  Cas- 
well V.  Caswell,  120  111.  377,  11  N.  E.  342;  Whitcomb  v.  Whitcomb,  46  Iowa, 


CHAP.  II.]  MARRIAGE.  [§  15. 

§  15.    Eflfect  of  statute    forbidding  remarriage  of    g^uilty  party- 
after  decree. 

Where  a  statute  prohibits  the  guilty  divorced  person  from 

remarrying,  such  remarriage  is    held   voidable,    and,  outside 

the  state  where  such  statute  operates,  valid.    These  statutes 

have  no  extra  territorial  effect.^^ 

§  16.     Pre-requisites  of  marriage. 

Many  of  the  states  have  enacted  laws  governing  and  regu- 
lating marriage.  Certain  forms,  ceremonies  and  conditions 
must  be  complied  with  before  the  contract  is  valid.  After 
once  having  voluntarily  been  entered  into  in  due  form  it  is 
recognized  in  law  as  a  civil  status. ^^ 

§  17.     Consent  of  parents. 

In  some  states,  if  the  parties  wishing  to  marry  are  under 
the  age  prescribed  by  law,  the  statutes  require  the  consent 
of  the  parents  or  guardian.  But  if  the  celebration  takes  place 
in  another  state,  where  there  is  no  such  provision  in  the 
statute,  the  marriage  is  valid  if  the  parties  were  old  enough 
to  contract  marriage,  and  this  is  true  even  though  they  left 
the  state  for  the  sole  purpose  of  evading  the  statute  requiring 
the  consent  of  parents.^''  Prohibitory  laws  not  based  upon 
natural  laws  have  no  extra-territorial  effect. ^^  The  effect  of 
these  statutes  is  not  to  render  such  marriages  void  if  they 
have  been  duly  solemnized,  even  though  the  provisions  of 
the  statutes  have  not  been  complied  with.  They  are  intended 
to  prevent,  as  far  as  possible,  ministers  and  magistrates  from 

437;  Edson  v.  Edson,  108  Mass.  590,  11  Am.  Rep.  393;  Allen  v.  Maclellan, 
12  Pa.  St.  328. 

18  Succession  of  Hernandez,  46  La.  Ann.  962,  15  So.  461,  24  L.  R.  A. 
831;  State  v.  Weatherby,  43  Me.  258,  69  Am.  Dec.  59;  Thorp  v.  Thorp,  90 
N.  Y.  602,  43  Am.  Rep.  189. 

"McCabe  v.  Berge,  89   Ind.  225. 

20  Com.  V.  Graham,  157  Mass.  73,  31  N.  E.  706,  34  Am.  St.  Rep.  255, 
16  L.  R.  A.  578  and  note. 

21  Fuller  V.  Fuller,  40  Ala.  301;  State  v.  Weatherby,  43  Me.  258,  69  Am. 
Dec.  59;  Dickson  v.  Dickson,  1  Yerg.  (Tenn.)  110,  24  Am.  Dec.  444. 

[9] 


§  19.]  THE   LAW  OF   MARRIAGE   AND   DIVORCE.       [CHAP.  II. 

solemnizing  marriages  when  the  prescribed  conditions  of  the 
statutes  have  not  been  fulfilled  by  inflicting  upon  them  a 
penalty  for  so  doing.  In  a  Massachusetts  case  the  court 
said:  "When  a  justice  or  minister  shall  solemnize  a  marriage 
between  parties  who  may  lawfully  marry,  although  without 
the  consent  of  the  parents  or  guardians,  such  marriage  would 
unquestionably  be  lawful,  although  the  officer  would  incur 
the  penalty  for  a  breach  of  his  duty.^^ 

§  18.     Solemnization  of  marriage. 

At  common  law  and  in  some  states  no  formal  ceremony  is 
required  to  make  a  marriage  valid.  A  mere  contract  between 
the  parties  is  sufficient,  although  such  marriages  are  looked 
upon  with  disfavor  everywhere.^^ 

§  19.     Ceremonial  marriage. 

In  most  states  the  law  plainly  sets  out  how  and  by  whom 
a  marriage  may  be  celebrated,  usually  by  an  ordained  minister 
of  the  gospel,  a  magistrate,  or  according  to  the  rites  of  Quakers. 
It  is  not  quite  clear,  however,  in  some  states  whether  a  cele- 
bration is  absolutely  necessary  or  not.  There  should  always 
be  either  a  religious  ceremony  or  a  civil  celebration  and  all 
marriages  by  simple  consent  should  be  declared  void  on  the 
ground  of  public  policy.  Such  marriages  are  contrary  to  the 
principles  of  sound  morality,  and  a  man  and  woman  living 
together  without  the  formality  of  a  celebration  are  in  reality 
living  in  a  state  of  adultery,  and  should  be  prevented  from 
so  doing  by  criminal  statutes,  for  this  reason  if  no  other,  that, 
should  there  be  children  born  while  the  parents  are  living  in 
this  state  they  would  be  illegitimate  and  consequently  inno- 
cent sufferers.  Again,  where  two  persons  intend  to  form  a 
union  for  life  they  can  have  no  reasonable  excuse  for  conceal- 
ing the  fact  from  the  rest  of  the  world,  for  the  celebration  can 
be  obtained  with  little  expense.    Then  there  is  always  diffi- 

22  Milford  V.  Worcester,  7  Mass.  48. 

23  Beamish  v.  Beamish,  9  H.  L.  Cases,  306. 

[10] 


CHAP.  II.]  MARRIAGE.  [§  20. 

culty  to  determine  whether  persons  so  loosely  joined  together 
are  married  or  not,  and  it  requires  very  unpleasant  and  ex- 
pensive litigation  to  determine  the  question.  The  court  said 
in  a  Massachusetts  case  that,  "The  mere  belief  of  either  or 
both  parties  that  they  were  husband  and  wife  does  not  con- 
stitute a  legal  marriage."^'* 

§  20.     Marriage  of  minors  authorized  by  judge  of  probate  court. 

In  Massachusetts  the  judge  of  probate  for  the  county  in 
which  a  minor  male  under  eighteen  years,  a  minor  female 
under  sixteen  years,  reside,  may,  after  a  hearing,  make  an 
order  allowing  the  marriage  of  such  minor,  if  the  father  of 
such  minor,  or,  if  he  is  not  living,  the  mother,  or,  if  neither 
parent  is  alive,  and  resident  in  the  commonwealth,  a  legal 
guardian  duly  appointed,  has  consented  to  such  order.  The 
judge  of  probate  may  also  after  a  hearing  make  such  order 
in  the  case  of  a  person  whose  age  is  alleged  to  exceed  that 
specified  above,  but  who  is  unable  to  produce  an  official  record 
of  birth,  whereby  the  reasonable  doubt  of  the  clerk  or  register 
may  be  removed. ^^ 

§  20a.     statute  forbidding  marriage  of  epileptics. 

The  states  of  Connecticut,  Kansas,  Michigan,  Minnesota  and 
Ohio  have  passed  a  law  substantially  as  follows:  No  man  or 
woman  either  of  whom  is  epileptic,  imbecile,  or  feeble  minded, 
shall  intermarry  or  Hve  together  as  husband  and  wife  when  the 
woman  is  under  forty-five  years  of  age,  prohibiting  such  mar- 
riage does  not  contravene  Const,  of  Conn.,  art.  1,  §  1,  guar- 
antying equahty  in  the  rights  of  Hberty  and  the  pursuit  of 
happiness,  and  one  induced  by  fraudulent  concealment  to 
marry  an  epileptic  forbidden  by  statute  is  entitled  to  a  divorce 
on  the  ground  of  fraudulent  contract. ^^ 

2*  Thompson  v.  Thompson,  114  Mass.  566;  Com.  v.  Munson,  127  Mass. 
459,  34  Am.  Rep.  411. 

25  Mass.  Rev.  Laws,  c.  151,  §  20. 

20  Gould  V.  Gould,  78  Conn.  242,  61  Atl.  604  and  cases  cited. 

[11] 


§21.] 


THE    LAW    OF    MARRIAGE    AND   DIVORCE.    [CHAP.  III. 


CHAPTER  III. 


VALIDITY    OR    INVALIDITY    OF    MARRIAGE. 


§  34.  Fraudulent  marriage. 

35.  Marriage  annulment   for  pre- 

existing,   incurable    syphilis. 

36.  Compulsory  marriage. 

37.  Evading  statute  by  marrying 

in  another  state. 

38.  Innocent  party's  right  to  re- 

marry. 

39.  Guilty    party's    right    to    re- 

marry. 

40.  Marriage    without    a    celebra- 

tion. 

41.  Effect  of  intoxication  on  mar- 

riage. 


§  21.  What  law  governs. 

22.  Intent  of  the  parties. 

23.  Invalid  marriage. 

24.  Void  and  voidable  marriage. 

25.  Incestuous  marriage. 

26.  Miscegenation. 

27.  Consanguinity  and  affinity. 

28.  Table  of  states   in  which  pro- 

hibited   marriages   are   void 
without  legal  process. 

29.  Issue  illegitimate. 

30.  Unnatural  contracts. 

31.  Children. 

32.  Table  of  nonage. 

33.  Mistaken  identity. 

§  21.     "WTiat  law  governs. 

The  validity  of  a  marriage  depends  upon  the  law  of  the  place 
where  the  marriage  is  performed.  It  matters  not  where  the 
marriage  takes  place.  If  the  parties  are  once  legally  married 
according  to  the  lex  loci  contractus,  the  place  where  the  mar- 
riage takes  place,  they  are  legally  married  everywhere.^ 

Story  says  that  a  marriage  valid  in  one  locality  is  valid 
everywhere.  But  this  applies  only  to  the  validity  of  the  cele- 
bration and  not  to  the  capacity  of  the  parties.  As  to  the 
latter,  the  law  of  their  place  of  abode  controls.  So,  if  they 
are  not  competent  to  marry  at  home,  they  cannot  enter  into 
a  valid  marriage  abroad.  The  validity  of  a  marriage  de- 
pends upon  its  validity  at  the  place  of  its  celebration.^ 

1  Harrison  v.  State,  22  Md.  468,  85  Am.  Dec.  658;  Com.  v.  Kenney, 
120  Mass.  387. 

2  Harrison  v.  State,  22  Md.  468,  85  Am.  Dec  658;  Com.  v.  Kenney, 
120  Mass.  387. 

[12] 


CHAP.  III.]    VALIDITY   OR   INVALIDITY   OF  MARRIAGE.  [§21. 

ILLUSTRATIONS. 

A  negro  and  a  white  person  whose  domicil  was  in  Massa- 
chusetts were  married  in  Rhode  Island  where  such  a  marriage 
was  valid,  although  it  was  void  in  Massachusetts.^  The 
Massachusetts  court  held  the  marriage  valid  because  it  was 
valid  m  Rhode  Island  where  it  was  solemnized.^  And  where 
a  negro  married  a  white  person  in  South  Carolina,  such  mar- 
riage being  permitted  there,  but  both  parties  were  domiciled 
residents  of  North  Carolina,  where  such  marriages  were  not 
permitted,  the  marriage  is  void  in  North  Carolina,  But  where 
its  celebration  took  place  in  South  Carolina,  and  both  parties 
removed  there  immediately  with  the  honest  intention  at  the 
time  of  making  that  state  their  home,  the  marriage  was  held 
to  be  valid.  The  validity  of  the  marriage  depends  upon  the 
capacity  of  the  parties.  It  makes  no  difference  where  the 
celebration  takes  place.  The  law  of  the  domicil  prevails.^ 
And  where  a  man  married  his  mother's  sister  in  England, 
where  such  a  marriage  was  not  forbidden,  and  afterward 
removed  to  Massachusetts  and  became  domiciled  there,  the 
Massachusetts  court  held  the  marriage  to  be  valid;  but  if 
such  a  marriage  had  been  entered  into  in  Massachusetts  it 
would  have  been  absolutely  void.^  Again,  where  a  person 
has  been  forbidden  to  marry,  as  where  the  court  has  imposed 
a  restriction  upon  the  libellee  after  a  divorce  in  one  state, 
and  he  or  she  goes  to  another  state,  where  the  prohibition  does 
not  apply,  and  is  married  according  to  the  laws  of  that  state, 
the  marriage  is  valid  everywhere.^ 

3  statute  of  1786,  c.  3,  §  7. 

4Medway  v.  Xeedham,  16  Mass.  157,  8  Am.  Dec.  131;  Putnam  v.  Put- 
nam, 25  Mass.  433. 

estate  r.  Kennedy,  76  X.  C.  251,  22  Am.  Rep.  683;  State  v.  Ross,  76 
N.  C.  242,  22  Am.  Rep.  678. 

8  Sutton  V.  Warren,  51  Mass.  451. 

7  Wilson  V.  Holt,  83  Ala.  528,  3  So.  321,  3  Am.  St.  Rep.768;  FuUer  v.  Ful- 
ler, 40  Ala.  301;  Putnam  v.  Putnam,  25  Mass.  433. 

[13] 


§  22.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.    [CHAP.  III. 

EXCEPTIONS  TO   RULE. 

The  only  exceptions  to  the  general  rule,  "that  a  marriage 
valid  where  it  is  contracted  is  valid  everywhere,"  are  the 
following :  — 

(a)  Polygamous  marriages.  Such  marriages,  although  valid 
by  the  law  of  the  place  where  the  parties  were  domiciled  will 
not  be  upheld  in  a  country  where  polygamy  is  a  crime.* 

(6)  Incestuous  or  unnatural  marriages,  as  where  a  man 
marries  his  mother  or  sister.  Such  marriages  being  contrary 
to  nature,  will  not  be  upheld,  though  permitted  by  the  law 
of  the  domicil  of  the  parties.^ 

(c)  Marriages  which  the  legislature  of  a  state  have  declared 
shall  not  be  allowed  any  validity  because  they  are  contrary 
to  the  policy  of  its  law.^*' 

In  Massachusetts,  where  a  marriage  between  a  man  and 
his  deceased  wife's  sister  is  lawful,  if  the  marriage  was  solem- 
nized in  the  above  state,  it  would  be  valid  in  those  states  where 
such  marriages  are  prohibited. ^^ 

§  22.     Intent  of  the  parties. 

Although  the  statutes  prescribe  by  whom  a  marriage  shall 
be  celebrated,  the  law  looks  at  the  intention  of  the  parties 
and,  if  possible,  will  declare  the  marriage  valid,  even  though 
there  is  some  irregularity.  This  is  done  on  the  ground  of 
public  policy  and  the  courts  hold  that  it  is  a  substantial  com- 
pliance with  the  statute  for  regulating  marriages  for  the  par- 
ties themselves  to  make  the  mutual  agreement  in  the  presence 
of  a  justice  of  the  peace  or  a  minister,  with  his  assent,  he  un- 
dertaking to  act  in  his  official  capacity.     But  if  the  justice  or 

8  Hyde  v.  Hyde,  L.  R.  1  P.  &  D.  133.  See  also  Brinkley  v.  Atty.  Gen., 
15  P.  D.  76  ;  Com.  v.  Lane,  113  Mass.  458,  18  Am.  Rep.  509. 

9  Story,  Conflict  of  Laws,  §  114;  Sutton  v.  Warren,  51  Mass.  451. 

10  Com.  V.  Lane,  113  Mass.  458,  18  Am.  Rep.  509  ;  Com.  v.  Graham,  157 
Mass.  73,  31  N.  E.  706,  34  Am.  St.  Rep.  255,  16  L.  R.  A.  578. 

"  Greenwood  v.  Curtis,  6  Mass.  378,  4  Am.  Dec.  145. 
[14] 


CHAP.  III.]  VALIDITY  OR   INVALIDITY  OF  MARRIAGE.  [§  23. 

minister  does  not  consent  to  act  in  his  official  character,  the 
marriage  is  void.^^  Also,  where  the  parties  testified  that 
seven  years  before  they  went  before  a  justice  of  the  peace  for 
the  county  where  they  both  lived,  and  in  the  town  where  the 
justice  resided  with  the  intent  of  both  to  contract  a  marriage 
before  the  justice;  that  the  man  stated  in  the  presence  and 
hearing  of  the  justice  that  the  woman  was  his  wife;  that  after- 
ward he  and  she  lived  together  as  husband  and  wife,  and  had 
children;  that  he  believed  himself  lawfully  married  to  her, 
and  she  believed  herself  lawfully  married  to  him.  The  justice 
testified  that  he  did  not  understand  that  he  married  the 
parties  at  the  time  and  all  that  was  said  by  either  was  that 
the  plaintiff  introduced  the  woman  as  his  wife.  The  court 
held  the  marriage  valid. ^^  The  court  said  "the  policy  of  the 
law,  as  thus  expressed,  is  strongly  opposed  to  regarding  a 
marriage,  entered  into  in  good  faith,  believed  by  one  or  both 
parties  to  be  legal  and  followed  by  cohabitation,  void.  A 
liberal  construction  of  the  statute  authorizes  us  to  construe 
it  as  including  a  case  where  the  parties  go  before  a  magistrate 
or  minister,  make  a  marriage  contract  in  some  form  in  his 
presence,  in  the  belief  that  he  sanctions  and  assents  to  it  in 
his  official  capacity,  and  cohabit  as  husband  and  wife  after- 
ward, believing  that  they  are  legally  married,  though  the 
magistrate  understands  the  matter  differently  and  does  not 
intend  to  act  officially  in  the  matter.  The  misunderstanding 
between  the  parties  and  the  magistrate  may  be  regarded  as 
an  informality  not  rendering  the  marriage  void.  The  spirit 
of  the  statute  would  be  violated  by  holding  the  parties  to  be 
fornicators  and  the  children  illegitimate."  ^'^ 

§  23.     Invalid  marriage. 
A  marriage  which  is  invalid  where  it  was  celebrated  is  in- 

12  Milford  V.  Worcester,  7  Mass.  48. 
"Meyers  v.  Pope,  110  Mass.  314. 
"  Meyers  v.  Pope,  110  Mass.  314. 

[15] 


§  24.]  THE   LAW  OF    MARRIAGE  AND   DIVORCE.      [CHAP.  III. 

valid  everywhere.  The  parties  must  comply  with  the  forms 
required  by  the  law  of  the  place  where  they  contract  the 
marriage  or  it  will  be  invalid,  except: — in  cases  where  there 
is  a  special  provision  of  law  applicable  to  marriages  of  for- 
eigners according  to  the  rites  of  their  own  country;  in  cases 
of  ambassadors,  consuls,  etc.,  where  the  parties  enjoy  extra- 
territorial rights;  ^^  and  in  cases  where  a  compliance  with  the 
law  is  impossible,  A  ceremony,  performed  by  a  man  and 
woman  in  good  faith  as  a  marriage  rite,  no  third  person  par- 
ticipating, and  no  magistrate  or  minister,  nor  any  person 
believed  to  be  such,  being  present,  and  neither  party  being 
a  Friend  or  Quaker,  does  not  constitute  a  valid  marriage 
under  the  laws  of  Massachusetts.^^ 

§  24.    Void  and  voidable  marriage. 

A  void  marriage  confers  no  legal  rights,  and,  when  it  is 
determined  that  the  marriage  is  void,  it  is  as  if  no  marriage 
had  ever  been  performed.  The  grounds  for  declaring  a  mar- 
riage void  are  based  usually  upon  some  incapacity  of  the 
parties  to  contract  marriage,  owing  to  their  relationship,  their 
mental  or  physical  capacity,  or  some  other  express  prohibi- 
tion.i^ 

A  voidable  marriage  differs  from  a  void  marriage  in  that 
it  may  be  afterwards  ratified  by  the  parties  and  become  valid 
and  usually  is  treated  as  a  valid  marriage  until  it  is  decreed 
void.  The  issue  of  a  voidable  marriage  declared  void  is  legiti- 
mate, and  the  tendency  is  to  construe  a  marriage  voidable 
rather  than  void,  when  such  a  construction  is  possible.^® 

15  Loring  v.  Thomdike,  87  Mass.  257. 

16  Com.  V.  Munson,  127  Mass.  459,  34  Am.  Rep.  411. 

17  See  Miscegenation,  infra,  p.  18;  Incestuous  Marriage,  infra,  p.  17; 
Consanguinity  and  Affinity,  infra,  p.  19;  Unnatural  Contracts,  tn/ra^ 
p.  21 ;  Insane  Persons  and  Idiots,  infra,  p.  7. 

18  See  Children,  infra,  p.  21;  Compulsory  Marriage,  infra,  p.  24; 
Evading  Statute  by  Marrying  in  Another  State,  infra,  p.  25;  Mistaken 

[16  1 


CHAP  III.]     VALIDITY   OR  INVALIDITY   OF   MARRIAGE. 


[§25. 


§  25.     Incestuous  marriage. 

Most  states  have,  by  statute,  defined  the  degree  of  rela- 
tionship rendering  persons  incompetent  to  marry,  and  certain 
marriages  of  parties  related  to  each  other  within  the  pro- 
hibited degree  of  consanguinity  and  affinity  are  either  void 
or  voidable.  The  following  table  is  a  fair  example  of  these 
statutes: 


A   MAN    SHALL   NOT  MARRY 

His  stepmother 

His  grandfather's  wife 

His  son's  wife 

His  mother 

His  grandmother 

His  daughter 

His  granddaughter 

His  sister 

His  grandson's  wife 

His  wife's  mother 

His  wife's  grandmother 

His  wife's  daughter 

His  wife's  granddaughter 

His  brother's  daughter 

His  sister's  daughter 

His  father's  sister 

His  mother's  sister 


A   WOMAN   SHALL  NOT   MARRY 

Her  stepfather 

Her  grandmother's  husband 

Her  daughter's  husband 

Her  father 

Her  grandfather 

Her  son 

Her  grandson 

Her  brother 

Her  granddaughter's  husband 

Her  husband's  father 

Her  husband's  grandfather 

Her  husband's  son 

Her  husband's  grandson 

Her  brother's  son 

Her  sister's  son 

Her  father's  brother 

Her  mother's  brother  ^^ 


And  these  prohibitions  continue,  notwithstanding  the  dis- 
solution by  death  or  divorce  of  the  marriage  by  which  the 
affinity  was  created,  unless  the  divorce  was  granted  because 
such  marriage  was  originally  unlawful  or  void.  It  has  been 
held  in  Virginia  that  where  a  man  married  his  deceased  wife's 
sister,  that  such  a  marriage  was  absolutely  void.^'*    The  stat- 

Identity,  infra,    p.  23  ;    Fraudulent  Marriage,  infra,  p.  24 ;   Duress, 
infra,  p.  81;  Fraud,  iyifra,  p.  81;  Mistake,  infra,  p.  82. 

19  Mass.  Rev.  Laws,  c.  151,  §§  1,  2. 

20  Kelly  V.  Scott,  5  Gratt.  (Va.)  479. 

2  [17] 


§26.]  THE    LAW    OF   MARRIAGE    AND    DIVORCE.   [CHAP.    III. 

utes  of  most  states  declare  marriages  within  the  prohibited 
degrees  void,  but  as  a  rule  the  courts  hold  the  word  "void," 
when  used  in  this  connection,  to  mean  voidable  only. 

§  26.     Miscegenation. 

Miscegenation,  or  the  mixing  of  races,  is  prohibited  by  the 
statutes  of  some  states,  and  marriages  between  a  white  person 
and  a  negro,  an  Indian,  or  a  Mongolian,  are  declared  void. 
Such  statutes  are  not  considered  laws  "impairing  the  obliga- 
tion of  contracts,"  within  the  meaning  of  the  constitution  of 
the  United  States,  and  are,  therefore    constitutional.^^ 

The  validity  of  such  marriages  depends  upon  the  law  of  the 
domicil  of  the  parties  thereto  and  not  upon  the  place  of 
contract,  it  being  a  question  of  the  legal  capacity  of  the  par- 
ties and  not  one  relating  to  the  proper  solemnization.  Such 
legal  incapacity  is  not  avoided  by  a  ceremony  performed  in  a 
state  where  such  marriages  are  valid,  if  the  domicil  of  the 
parties  is  not  changed. ^^ 

In  general,  the  laws  relate  to  marriages  of  white  persons  and 
negroes  in  the  southern  states,  although  some  northern  states 
have  similar  provisions,  while  in  South  Carolina,  at  least,  there 
is  no  such  prohibition  and  such  marriages  are  valid.  What 
constitutes  a  "negro,"  or  "colored  person"  has  arisen  and 
has  been  determined  in  opinions  shaded  to  blend  with  local 
color  or  conditions. ^^  And  in  a  recent  case  in  Missouri  the 
supreme  court  held  that,  it  having  always  been  unlawful 
in  Missouri  for  white  persons  and  negroes  to  intermarry,  no 
common-law  marriage  existed  between  a  white  man  and  a 
negro  woman  who  cohabited  together  without  any  marriage 
ceremony,  from  1851  to  1883,  and  had  children  born  to  them; 

21  Pace  V.  Alabama.  106  U.  S.  583,  27  L.  ed.  207;  Dred  Scott  v.  Sand- 
ford,  19  How.  (U.  S.)  393,  15  L.  ed.  691;  In  re  Hobbs,  1  Woods  (U.  S.), 
537,  Fed.  Cas.  No.  6,550;  Kinney  v.  Com.,  30  Gratt.  (Va.)  858. 

22  State  V.  Kennedy,  76  N.  C.  251,  22  Am.  Rep.  683. 

23  Felix  V.  State,  18  Ala.  720;  Bailey  v.  Fiske,  34  Me.  77;  State  v.  Watters, 
3  Ired.  (N.  C.)  455;  McPherson  v.  Com.,  28  Gratt.  (Va.)  939. 

[18] 


CHAP.  III.]    VALIDITY  OR    INVALIDITY   OF  MARRIAGE.  [§  27. 

that  the  fact  that  the  woman,  after  her  emancipation  from 
slavery,  continued  living  with  the  man  without  any  marriage 
ceremony  as  she  had  done  before,  did  not  raise  a  presumption 
of  a  common-law  marriage  in  view  of  the  fact  that  they  sep- 
arated in  1883,  and  that  a  marriage  between  them  would  have 
been  criminal ;  and  that  children  born  to  such  persons  did  not 
fall  within  a  statute  providing  that  ' '  the  issue  of  all  marriages 
declared  null  in  law,  or  dissolved  by  divorce,  shall  be  legiti- 
mate." 24 

§  27.     Consanguinity, 

Subd.  1.  The  terms  "consanguinity"  and  "affinity"  are 
used  to  define  certain  relationships  which  may  constitute 
impediments  to  marriage  and  grounds  for  its  annulment, 
the  term  "consanguinity"  being  used  to  designate  a  rela- 
tionship of  blood. -^ 

Affinity. 

Subd.  2.  The  term  "affinity"  is  used  to  designate  a  rela- 
tionship formed  by  marriage. ^^ 

Marriages  between  persons  of  a  relationship  within  certain 
degrees  of  blood  or  marriage  are,  by  statute,  generally  pro- 
hibited and  declared  void  and  classed  as  "incestuous  mar- 
riages." 2' 

24  Keen  v.  Keen  (Mo.),  83  S.  W.  526. 

25  Blodgett  V.  Brinsmaid,  9  Vt.  27.  See  also  Words  &  Phrases,  vol.  2, 
p.  1435. 

26  Ex  parte  Harris,  26  Fla.  77,  7  So.  1,  23  Am.  St.  Rep.  548,  6  L.  R. 
A.  713.     See  also  Words  &  Phrases,  vol.  1,  p.  245. 

27  See  supra,  p.  17. 


[19] 


§  29.  ]  THE    LAW   OF   MARRIAGE    AND    DIVORCE.     [CHAP.  III. 


§  28.    Table  of   states  in  which  prohibited  marriages  are  void 
without  legal  process. 

Alabama.    Marriage  void  without  legal  proceedings. 

Arizona.  If  married  in  the  state,  void  without  legal  pro- 
ceedings. 

Arkansas. 

Colorado. 

District  of  Columbia. 

Idaho. 

Indiana. 

Indian  Territory. 

Maine. 

Massachusetts. 

Michigan. 

Montana. 

Nevada. 

New  Hampshire. 

Oklahoma. 

Oregon. 

South  Dakota. 

Vermont. 

Virginia. 

Wisconsin. 

Wyoming. 

Rhode  Island.  Except  that  the  law  shall  not  extend  to,  or 
affect  any  marriage  which  shall  be  solemnized  among  the 
Jews  within  the  degrees  of  affinity  or  consanguinity  allowed 
by  their  religion. 


§  29.     Issue  illegitimate. 

The  issue  of  a  marriage  which  is  void  by  reason  of  affinity 
or  consanguinity  between  the  parties  is  illegitimate.  But  a 
marriage  contracted  out  of  the  state  and  valid  where  con- 
tracted, if  not  incestuous  by  the  law  of  nature  will  be  valid.^* 


[20] 


28  Sutton  V.  Warren,  51  Mass.  451. 


CHAP.  III.]    VALIDITY  OR  INVALIDITY  OF  MARRIAGE.  [§  31. 

§  30.    Unnatural  contracts. 

There  can  be  no  marriage  between  any  two  persons  of  the 
same  sex,  and  no  kind  of  an  attempted  solemnization  of  such 
a  marriage  can  be  legal  or  valid.^' 


§  31.     Children. 

At  common  law  the  marriage  of  a  child  under  seven  years 
of  age  is  absolutely  void.^"  And  the  marriage  of  a  male  child 
between  the  age  of  seven  and  fourteen  years  and  a  female 
child  between  seven  and  twelve  is  voidable.^^  At  common 
law  the  marriage  is  considered  legal  if  the  parties  have  arrived 
at  the  age  of  puberty,  which  is  fourteen  years  in  the  male  and 
twelve  in  the  female.^' 

Though  by  statutes  of  the  different  states  the  age  of  nonage 
varies,  marriages  under  these  ages  are  voidable  rather  than 
void.  Such  marriages  may  be  ratified  by  sexual  intercourse 
after  arriving  at  lawful  age,  and  such  ratification  is  an  abso- 
lute defense  to  an  action  for  annulment  or  divorce.^^  But 
in  an  Ohio  case  it  was  held  that  a  marriage  by  an  infant  under 
the  age  of  consent  was  void  unless  confirmed  by  cohabitation 
after  arriving  at  lawful  age.^^ 

At  common  law  an  infant  who  married  under  the  age  of 
consent  could  deny  and  avoid  the  marriage  without  any 
judicial  decree.^^    But  by  statute  in  most  states  such  a  mar- 


29  Lloyd  Law  of  Divorce,  p.  18. 

30  1  Bishop  Marriage  and  Divorce,  §147. 

31  1  Blackstone  Comm.  436;  Beggs  v.  State,  55  Ala.  108;  Bonker  v.  People, 
37  Mich.  4;  State  v.  Cone,  86  Wis.  498,  57  N.  W.  50. 

32  Beggs  V.  State,  55  Ala.  108;  Barton  v.  Hervey,  67  Mass.  119;   Bennett 
V.  Smith,  21  Barb.  (N.  Y.)  439;  Fisher  v.  Bernard,  65  Vt.  663,  27  Atl.  316. 

33  Goodwin   v.  Thompson,  2  Greene  (Iowa),  329;    Koonce   v.  Wallace, 
7  Jones,  (N.  C.)  194. 

34Shafher  v.  State,  20  Ohio,  1. 

35  Beggs  V.  State,  55  Ala.  108;  People  v.  Bennett,  39  Mich.  208;  Governor 
V.  Rector,  10  Humphr.  (Tenn.)  57, 

[21] 


§32.] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE.      [CHAP.    III. 


riage    is    considered    valid    until    set    aside    by    decree    of 
court. ^® 

§  32.     Table  of  nonage. 

Nonage  as  here  used  signifies  the  age  below  which  a  person 
is  either  forbidden  to  marry  or,  if  starred,  is  not  permitted  by 
law  to  be  married  except  under  certain  restrictions. 

IVIALE. 

Alabama 17  years 

Arizona 18 

Arkansas 17 

California 18 

*Colorado 21 

^Connecticut 21 

Delaware 18 

*District  of  Columbia 21 

^Florida 21 

Georgia 17 

Idaho 18 

Illinois 18 

Indiana 18 

Indian  Territory 17 

Iowa 16 

*Kansas.t 17 

Kentucky 14 

Louisiana 14 

*Maine 21 

*Maryland 21 

Massachusetts 14 

Michigan 18 

Minnesota 18 

^Mississippi 21 

*Missouri 21 

36  Walls  V.  State,  32  Ark.  565;  State  v.  Cone,  86  Wis.  498,  57  N.  W.  50. 
t  See  p.  205. 
[22] 


FEMALE. 

ars   14  years 

16  ' 

14  * 

15  " 

18  ' 

21  ' 

i 

16  ' 

18  ' 

21  ' 

14  ' 

18  ' 

16  ' 

16  ' 

14  ' 

14  ' 

15  ' 

12  ' 

12  ' 

18  ' 

16  ' 

12  ' 

16  ' 

15  ' 

18  ' 

18  ' 

CHAP.  III.]    VALIDITY   OR   INVALIDITY   OF   MARRIAGE.  [§  33. 

MALE.  FEMALE. 

Montana 18  years  16  years 

Nebraska 18    "  16    " 

Nevada 18    "  16    " 

New  Hampshire 14    "  13     " 

*New  Jersey 21     ''  18    " 

New  Mexico 18    "  15    " 

New  York 18    "  18    " 

North  CaroHna 16    "  14    " 

North  Dakota 16    "  13    " 

Ohio 18    "  16    " 

Oklahoma 18    "  15    " 

Oregon 18    "  15    " 

*Pennsylvania 21     "  21     " 

PhiHppines 14    "  12    " 

Porto  Rico 18    ''  16    " 

*Rhocle  Island 21     "  21     " 

South  Carolina No  statute 

South  Dakota. 18    "  15  years. 

Tennessee 14    "  12    " 

Texas 16    "  14    " 

Utah 16    "  14    " 

*Vermont 21     "  18    " 

Virginia 14    "  12    " 

*Washington 21     "  18    " 

West  Virginia 18    "  16     " 

Wisconsin 18    "  15    " 

Wyoming 18    "  16    " 

§  33.     Mistaken  identity. 

A  marriage  performed  between  two  persons  is  invalid,  if 
one  of  the  parties  thereto  was  honestly  mistaken  as  to  the 
identity  of  the  other  and  believed  such  person  to  be  somebody 

else,  and  the  marriage  was  not  afterwards  ratified  by  cohab- 
itation or  voluntary  sexual  intercourse.^^ 

37  Bishop  Marriage  and  Divorce  §  20S. 

[23] 


§  36.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  III. 

§  34.     Fraudulent  marriage. 

Gross  fraud  in  the  marriage,  such  as  outrageous  falsehood 
or  misrepresentations  by  one  of  the  parties  to  the  contract 
is  sufficient  to  render  a  marriage  voidable.^*  But  false  state- 
ments as  to  position  in  society,  bodily  health,  wealth,  and 
family  connections  are  not  sufficient  to  invalidate  a  mar- 
riage.^^ 

§  35.     Marriage  annulment  for  preexisting,  incurable  syphilis. 

It  is  within  the  power  of  a  judge  of  the  superior  court  to 
enter  a  decree  for  a  libellant,  under  Mass.  Pub.  St.,  c.  145,  §  11, 
declaring  the  marriage  void,  where  it  appears  that  the  libel- 
lant, soon  after  the  ceremony  and  before  the  consummation 
of  the  marriage,  on  learning  that  the  respondent  was  afflicted 
with  a  venereal  disease,  refused  to  live  with  and  never  did 
live  with  him,  and  the  judge  finds  that  he  was  constitutionally 
afflicted  with  syphilis  with  which  the  libellant  would  become 
infected  in  case  of  cohabitation,  and  "that  the  disease  would 
be  transmitted  to  any  offspring  which  they  might  have;  that, 
while  it  was  not  absolutely  incurable,  the  chances  of  a  cure 
being  effected  in  the  state  in  which  the  respondent  was  were 
very  remote  and  doubtful."  '^^  So  if  a  woman  has,  at  the  time 
of  her  marriage,  chronic,  incurable  syphilis  from  which  copula- 
tion with  her  is  attended  with  great  danger  of  contracting  the 
same  malady,  her  husband  is  entitled  to  a  decree  annulling 
the  marriage.^^ 

§  36.     Compulsory  marriage. 

A  compulsory  marriage  is  illegal  and  void,  if  it  is  not  after- 
wards ratified  by  the  parties.  Thus,  where  a  woman  is  forced 
into  the  relationship  at  the  point  of  a  pistol  or  is  put  in  fear 
of  great  bodily  harm  she  is  not  legally  married,  unless  she 

38Leavitt  v.  Leavitt,  13  Mich.  452;  Carris  v.  Carris,  24  N.  J.  Eq.  516. 

39  Benton  v.  Benton,  1  Day  (Conn.),  114;  Leavitt  v.  Leavitt,  13  Mich. 
452;  Clarke  v.  Clarke,  11  Abb.  Pr.  228.  (N.  Y.). 

40  Smith  7'.  Smith,  171  Mass.  404,  50  N.  E.  933,  68  Am.  St.  Rep.  440. 
«  Ryder  v.  Ryder,  66  Vt.  158,  28  Atl.  1029,  44  Am.  St.  Rep.  833. 

[24] 


CHAP.    III.]    VALIDITY    OR    INVALIDITY    OF   MARRIAGE.  [§  37.. 

afterwards  consents  by  cohabitation  or  voluntary  sexual  in- 
tercourse.^^ 

The  proof  disclosed  that  the  relatives  of  the  defendant 
insisted  upon  the  plaintiff  marrying  her,  believing  that  he 
had  seduced  and  ruined  her,  and  that  to  marry  her  was  his 
duty  under  the  circumstances;  and  further  that  the  plaintiff 
upon  due  consideration  of  the  pressure  which  was  brought  to 
bear  upon  him,  and  of  his  duty  to  repair  a  wrong  he  had  done 
the  girl,  yielded  a  reluctant  and  passive  consent  to  the  per- 
formance of  a  marriage  ceremony.  It  was  held  that  a  case 
was  not  presented  which  justified  a  court  in  annulling  the 
marriage  which  was  thus  brought  about."*' 

§  37.    Evading  statute  by  marrying'  in  another  state. 

When  persons  residing  in  one  state  in  order  to  evade  the 
statutes  as  to  prohibited  marriages,  and  with  the  intention  of 
returning  to  reside  in  that  state,  go  into  another  state  and 
there  have  the  marriage  solemnized  and  afterwards  return 
and  reside  in  that  state,  the  marriage  is  void  and  may  be 
annulled.  To  warrant  such  a  decree,  however,  both  parties 
must  have  intended  to  evade  the  statute."*^ 

§  38.     Innocent  party's  right  to  remarry. 

An  absolute  divorce  renders  the  innocent  party  free  to 
contract  a  second  marriage.^^ 

§  39.     Guilty  party's  right  to  remarry. 

In  many  states  the  guilty  party  has  the  right  to  remarry. 
In  others  he  or  she  is  prohibited  from  contracting  another  mar- 
riage for  a  certain  length  of  time.    And  in  still  others  he  or  she 

«Bassett  v.  Bassett,  9  Bush.  (Ky.)  696;  Collins  v.  Collins,  2  Brews. 
(Pa.)  515;  WiUard  v.  Willard,  6  Baxt.  (Tenn.)  297,  32  Am.  Rep.  529. 

"Collins  V.  Ryan,  49  La.  Ann.  1710,  43  L.  R.  A.  814  and  note. 

"Corn.  V.  Lane,  113  Mass.  458,  18  Am.  Rep.  509;  Whippen  v.  Whippen, 
171  Mass.  560,  51  N.  E.  174. 

«Whitsell  V.  Mills,  6  Ind.  231;  Barber  v.  Root,  10  Mass.  260;  Hunt  v. 
Thompson,  61   Mo.   148. 

[25] 


§  40.]  THE   LAW   OF   MARRIAGE   AND    DIVORCE.     [CHAP.  III. 

is  prohibited  from  marrying  altogether.  But  this  prohibition 
applies  only  to  a  marriage  contracted  in  the  state  and  would 
not  affect  the  legality  of  a  marriage  contracted  in  another 
state,  for  the  courts  have  no  extra-territorial  jurisdiction; 
they  cannot  place  restraint  upon  persons  beyond  the  state's 
borders."^® 

Dole  says,  "Whether  divorce  should  free  the  guilty  from 
the  bond  of  matrimony  as  well  as  the  innocent  is  a  question 
upon  which  there  is  much  difference  of  opinion.  Persons  for 
whose  gross  misconduct  divorces  have  been  decreed  certainly 
have  no  just  ground  of  complaint  if  they  are  not  permitted  to 
marry  again.  On  the  other  hand,  such  persons  frequently 
find  new  and  more  congenial  companions,  and  make  exemplary 
husbands  and  wives,  and  perhaps  the  public  good  may  require 
that  they  should  not  be  turned  loose  upon  society,  deprived 
of  that  right,  for,  unless  they  are  better  than  the  average  of 
mankind — an  absurd  presumption  in  such  cases — they  almost 
invariably  form  illicit  connections  if  marriage  is  denied  them.  "^^ 

§  40.     Marriage  without  a  celebration. 

A  marriage  without  a  celebration  is  called  a  common-law 
marriage.  It  may  be  entered  into  by  simple  consent  of  the 
parties  to  take  each  other  as  husband  and  wife,  but  the  con- 
sent must  be  mutual  to  constitute  the  marriage.  The  law 
looks  to  the  intention  of  the  parties  to  form  the  relationship 
rather  than  to  the  use  of  words  which  may  or  may  not  have 
been  meant  to  be  final.  For  the  man  to  say,  "This  is  your 
wedding  ring,  we  are  married"  and  followed  by  cohabitation 
has  been  held  sufficient.  No  technical  words  are  necessary 
even  where  a  celebration  is  required  by  law.''*  And  it  has 
been  held,  where  the  woman  said,  "I  hereby  declare  A,  B.  to 

"Wilson  V.  Holt,  83  Ala.  528,  3  So.  321,  3  Am.  St.  Rep.  768;  Fuller  v. 
Fuller,  40  Ala.  301 ;  Putnam  v.  Putnam,  25  Mass.  433. 
"  E.  P.  Dole,  Talks  About  Law,  p.  161. 
<8  Dickerson  v.  Brown,  49  Miss.  357. 

[26] 


CHAP.  III.]   VALIDITY   OR   INVALIDITY   OF   MARRIAGE.  [§  40. 

be  my  husband,"  the  declaration  being  answered  by  words 
or  signs  acknowledging  the  relationship,  that  this  constituted 
marriage.  Mere  words  without  any  intention  of  the  parties 
will  not  make  a  marriage.  Thus,  where  the  marriage  cere- 
mony is  gone  through  in  jest  or  with  the  distinct  understanding 
that  it  is  not  for  the  purpose  of  marriage,  or  where  one  of  the 
parties  is  mistaken  and  believes  the  ceremony  to  be  a  mere 
preliminary,  there  is  really  no  consent  given,  and  can  be  no 
marriage.'*^  And  where  one  party  impersonates  another  and 
by  this  means  procures  a  marriage  ceremony  to  be  performed, 
the  marriage  is  void.  So  where  two  parties  go  through  a 
marriage  ceremony  in  masquerade,  each  mistaking  the  identity 
of  the  other,  there  is  no  marriage.  Again,  where  A  consents 
to  become  betrothed  to  B  and  the  marriage  ceremony  is  gone 
through  with  between  them  upon  the  pretence  or  belief  that 
it  means  only  betrothal,  it  is  not  binding.^''  So,  too,  where  a 
marriage  ceremony  was  performed  and  the  parties  had  a 
private  understanding  that  it  would  not  take  efTect  or  be 
binding  for  at  least  two  years,  the  validity  of  the  marriage 
was  successfully  assailed  by  the  woman. 

A  marriage  contract  can  be  entered  into  by  letter  or  by  a 
message  by  a  third  party,  but  must  be  accepted  within  a 
reasonable  time.  To  constitute  the  relationship  there  must 
be  mutual  assent  in  all  respects.  Where  the  words  are  used 
by  one  and  assented  to  by  the  other,  but  not  understanding 
or  intending  a  marriage,  there  is  no  marriage.  A  promise  of 
marriage  at  some  future  time  with  a  mutual  understanding 
that  it  shall  take  place  is  sufficient  consent  to  constitute 
marriage  if  consummated  by  sexual  intercourse.^^  And  where 
a  man  and  woman  are  living  together  and  by  general  repute 
are  husband  and  wife,  it  will  not  be  presumed  that  they  are 
living  together  in  a  state  of  fornication.     But  in  the  cases  just 

«  McClurg  V.  Terry,  21  N.  J.  Eq.  225. 

50  Clark  v.  Field,  13  Vt.  460. 

51  Cargile  v.  Wood,  63  Mo.  501. 

[27] 


§  41.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  III. 

mentioned  where  the  courts  have  held  that  there  was  no  mar- 
riage, like  marriages  followed  by  sexual  intercourse,  would  be 
ratified  and  held  valid.  So  an  agreement  between  a  man 
and  his  divorced  wife  to  let  the  past  be  past  and  from  that 
time  on  they  would  again  live  together  as  man  and  wife  fol- 
lowed by  cohabitation,  constitutes  a  valid  marriage  at  common 
law.^2  Where  a  celebration  is  required  no  technical  words 
are  necessary.  It  is  sufficient  if  both  parties  actually  intend 
to  become  husband  and  wife.^^ 

§  41.     Effect  of  intoxication  on  marriage. 

An  appellate  court  will  not  reverse  the  decree  of  the  trial 
court  as  being  against  the  evidence  where  the  evidence  is 
conflicting  upon  the  subject  of  the  mental  capacity  of  one 
who  enters  into  a  marriage  contract,  where  there  is  suflacient 
evidence,  if  believed,  to  show  that  the  party  was  not  deprived 
of  the  use  of  his  reasoning  faculties  at  such  time,  and  where  the 
uncontradicted  evidence  shows  that  the  party  has  repeatedly 
since  the  marriage  ratified  the  same  by  cohabitation  with  the 
other  party  thereto.  If  a  party  at  the  time  of  entering  into 
a  marriage  contract,  is  so  intoxicated  as  to  be  non  compos 
mentis,  and  does  not  know  what  he  is  doing,  and  is  for  the  time 
deprived  of  reason,  the  marriage  is  invalid;  but  is  not  invalid 
if  the  intoxication  is  of  a  less  degree  than  that  stated, 

A  marriage  invalid  at  the  time  for  want  of  mental  capacity 
of  one  of  the  parties  thereto  may  be  ratified  and  made  valid 
afterwards  by  any  acts  or  conduct  which  amount  to  a  recogni- 
tion of  the  same.^'* 

52Mickle  V.  State  (Ala.),  21  So.  66. 
53  Dickerson  v.  Brown,  49  Miss.  357. 
64  Prine  v.  Prine,  36  Fla.  676,  18  So.  781,  34  L.  R.  A.  87  and  note. 


28  ] 


CHAP.   IV.] 


PROOF   OF   MARRIAGE. 


[§42. 


CHAPTER  IV. 

PROOF   OF 

MARRIAGE. 

42. 

Admissions. 

§  49.  Records. 

43. 

Circumstantial  evidence. 

50.  Repute. 

44. 

Cohabitation. 

51.  Testimony  of  persons  oflSciat- 

45. 

Cohabitation  as  proof  of  mar- 

ing. 

riage  when  it  begins  unlaw- 

52. Necessity  of  proof  of  marriage. 

fully. 

53.  Proof  of  foreign  marriage. 

46. 

Confessions. 

54.  Presumptions  flowing  from 

47. 

Eyewitnesses. 

marriage  ceremony. 

48. 

Marriage  certificates. 

§  42.     Admissions. 

The  admissions  of  a  party,  as  a  rule,  may  be  used  against 
him  in  any  case,  civil  or  criminal,  and  the  same  applies  to  an 
action  for  divorce.  Such  admissions  are  not  necessarily  con- 
clusive, but  are  admitted  and  have  the  same  weight  as  in 
other  cases.  ^ 

§  43.     Circumstantial  evidence. 

A  marriage  may  be  proved  by  circumstantial  evidence  in 
divorce  cases,  as  readily  as  any  other  question  of  fact  in  any 
other  case.^ 


§  44.     Cohabitation. 

In  the  absence  of  any  charge  of  criminal  intent,  as  in  the 
case  of  bigamy,  marriage  may  be  presumed  to  exist  as  a  fact 

1  Clayton  v.  Clayton,  4  Colo.  410,  State  v.  Libby,  44  Me.  469,  69  Am. 
Dec.  115;  Com.  v.  Caponi,  155  Mass.  534..  30  N.  E.  82;  State  v.  Gonce,  79 
Mo.  600. 

2Lowry  v.  Coster,  91  III.  182;  Camden  v.  Belgrade,  75  Me.  126;  Com.  v. 
DiU,  1,56  Mass.  226,  30  N.  E.  1016;  Gibson  v.  Gibson,  24  Neb.  394,  39  N. 
W.  450;  Mitchell  v.  Mitchell,  11  Vt.  134. 

[29] 


§  47.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  IV. 

between  a  man  and  woman,  who  have  openly  cohabited  and 
consorted  together,  under  circumstances  which  would  justify 
the  presumption.  This  presumption  of  fact  is  based  upon  the 
various  presumptions  of  law  in  favor  of  innocence  rather  than 
guilt,  of  regularity  in  a  ceremony  rather  than  irregularity,  and 
a  general  presumption  of  marriage.^  But  this  cohabitation 
must  be  more  than  mere  association  or  even  illicit  intercourse, 
and  should  be  shown  to  be  of  such  continuous  and  open  nature 
as  to  create  a  general  reputation  among  relatives  or  neighbors 
that  the  parties  are  married."* 

§  45.  Cohabitation  as  proof  of  marriage  when  it  begins  un- 
lawfully. 
A  continuance  of  cohabitation  after  the  removal  of  an 
obstacle  to  a  valid  marriage  will  not  be  sufficient  to  con- 
stitute such  a  marriage,  where  the  cohabitation  began  under 
an  illegal  marriage  entered  into  in  good  faith  by  one  of  the 
parties  only.° 

§  46.     Confessions. 

Admissions  made  in  writing  by  a  party  may  be  construed 
as  a  confession  and  be  introduced  against  him.^ 

§  47.     Eyewitnesses. 
Witnesses  who  were  present  and  saw  the  parties  united  in 

3Lampkin  v.  Travelers'  Ins.  Co.,  11  Colo.  App.  249,  52  Pac.  1040; 
Harman  v.  Harman,  16  111.  85;  Taylor  v.  Robinson,  29  Me.  323;  Com.  v. 
Kenney,  120  Mass.  387;  Com.  v.  Littlejohn,  15  Mass.  163;  Vreeland  v. 
Vreeland,  18  N.  J.  Eq.  43;  Bullock  v.  Bullock,  85  Hun  (N.  Y.),  373,  32 
N.  Y.  Supp,  1009;  Finn  v.  Finn,  12  Hun  (N.  Y.),  339;  Odd  Fellows  Benefi- 
cial Assoc.  V.  Carpenter,  17  R.  I.  720,  24  Atl.  528;  United  States  v.  Green, 
98  Fed.  63. 

*  Budington  v.  Munson,  33  Conn.  481 ;  Peet  v.  Peet,  52  Mich.  464,  18 
N.  W.  220;  Gall  v.  Gall,  114  N.  Y.  109,  21  N.  E.  106;  Strauss's  Estate,  168 
Pa.  St.  561,  32  Atl.  98;  Moore  v.  Moore,  102  Tenn.  148.  52  S.  W.  778. 

6  Collins  V.  Voorhees,  47  N.  J.  Eq.  555,  22  Atl.  1054,  24  Am.  St.  Rep.  412, 
14  L.  R.  A.  364. 

6  Com.  V.  Caponi,  155  Mass.  534,  30  N.  E.  82. 

[30] 


CHAP.  IV.]  PROOF   OF  MARRIAGE.  [§  48. 

marriage  are  competent  to  testify  to  that  fact,  and  the  mar- 
riage may  be  proved  as  fully  in  that  manner  as  by  any  other 
evidence.^ 

§  48.     Marriage  certificates. 

A  certificate  of  marriage,  signed  by  the  clergyman,  or  magis- 
trate who  performed  the  marriage  ceremony  may  be  admitted 
as  evidence  of  the  marriage,  though  sometimes  evidence  of  the 
proper  execution  and  the  identity  of  such  person  is  demanded.* 

§  49.     Records. 

The  records  kept  by  an  official  in  accordance  with  legal  re- 
quirements may  be  admitted  in  divorce  cases  in  the  same 
manner  as  in  other  cases  and  will  have  equal  weight.  But 
in  order  for  a  record,  or  a  certified  copy  of  a  record,  when 
such  is  admissible,  to  be  considered  as  proving  a  marriage  it 
must  show  clearly  that  there  was  a  marriage  performed  be- 
tween the  parties  by  a  competent  official  and  that  the  legal 
prerequisites  were  complied  with.^ 

§  50.     Repute. 

As  stated  under  "  Cohabitation  "  {supra,  §  44),  the  reputa- 
tion of  the  parties  to  the  alleged  marriage  must  be  shown,  as 
well  as  the  cohabitation,  and  such  reputation  must  result  from 
the  cohabitation  by  the  parties.  Reputation,  without  proof 
of  cohabitation,  is  of  itself  of  little  consequence. ^° 

7  Com.  V.  Littlejohn,  15  Mass.  163;  Com.  v.  Norcross,  9  Mass.  492;  Flem- 
ing V.  People,  27  N.  Y.  329;  Patterson  v.  Gaines,  6  How.  (U.  S.)  550,  12 
L.  ed.  553. 

8  Jones  V.  Jones,  18  Me.  308,  36  Am.  Dec.  723;  People  v.  Imes,  110  Mich. 
250,  68  N.  W.  157;  Hutchins  v.  Kimmell,  31  Mich.  126,  18  Am.  Rep. 
164;  Gaines  v.  Green  Pond  Iron  Mining  Co.,  32  N.  J.  Eq.  86;  Hill  v.  Hill, 
32  Pa.  St.  511;  State  v.  Abbey,  29  Vt.  60,  67  Dec.  Am.  754. 

BHawes  v.  State,  88  Ala.  37,  7  So.  302;  Tucker  v.  People,  117  111.  88; 
Squire  v.  State,  46  Ind.  459;  Verholf  v.  Van  Houwenlengen,  21  Iowa,  429; 
Com.  V.  Hayden,  163  Mass.  453,  40  N.  E.  846,  47  Am.  St.  Rep.  468,  28  L. 
R.  A.  318;  Northfield  v.  Plymouth,  20  Vt.  582. 

10  Com.  V.  Johnson,  92  Mass.  196;  Com.  v.  Hurley,  80  Mass.  411;  Ash- 

[31] 


§  53.]  THE    LAW   OF    MARRIAGE   AND   DIVORCE.     [CHAP.  IV. 

§  51.    Testimony  of  persons  officiating. 

The  officiating  clergyman  or  magistrate  is  a  competent  wit- 
ness to  the  fact  of  the  marriage,  to  the  identity  of  the  parties, 
and  even  to  his  legal  capacity  to  perform  the  ceremony,  and 
to  such  other  facts  that  may  come  within  his  knowledge  in  the 
course  of  his  duty  as  such  officer." 

§  52.    Necessity  of  proof  of  marriage. 

The  requirement  of  the  law  that  a  marriage  must  be  proved 
as  the  first  step  in  a  suit  for  divorce  is  based  upon  the  theory 
that  it  is  necessary  to  first  judicially  and  legally  determine 
the  present  status  of  the  parties  before  any  decree  can  be 
properly  made  which  will  affect  their  future  status.  This  is 
intended  to  preclude  any  fraud  or  error  in  any  claim  for  relief 
in  person  or  property  in  any  suit  for  divorce  where  no  legal 
relationship,  through  marriage,  ever  existed. ^^ 

The  validity  of  a  marriage  has  been  held  to  be  established 
by  the  decree  of  a  divorce  from  such  marriage. ^^ 

§  53.    Proof  of  foreign  marriage. 

Foreign  marriages  may  be  proved  most  readily  by  copies 
of  the  record  of  such  marriages  properly  attested.  ^^  The  law 
of  the  place  of  marriage  must  usually  be  proved  as  a  question 
of  fact,  in  addition.  ^^  When  there  is  evidence  of  cohabitation, 
between  competent  parties  with  an  intention  to  marry,  the 
court  may  presume  the  foreign  law  to  be  complied  with.^^ 

ford  V.  Ins.  Co.,  80  Mo.  App.  638;  Moore  v.  Moore,  102  Tenn.  148,  52  S. 
W.  778. 

"  Brewer  v.  State,  59  Ala.  101;  Dale  v.  State,  88  Ga.  552,  15  S.  E.  287; 
Com.  V.  Hayden,  163  Mass.  453,  40  N.  E.  846,  47  Am.  St.  Rep.  468,  28  L. 
R.  A.  318  and  note;  People  v.  Imes,  110  Mich.  250,  68  N.  W.  157. 

12  Harman  v.  Harman,  16  lU.  85;  Mangue  v.  Mangue,  1  Mass.  240;  Vree- 
land  V.  Vreeland,  18  N.  J.  Eq.  43. 

13  Halbrook  v.  State,  34  Ark.  511,  36  Am.  Rep.  17. 

14  State  V.  Goodrich,  14  W.  Va.  834;  1  Bishop  Marriage  and  Divorce,  475. 
i5Wottrich  V.  Freeman,  71  N.  Y.  601. 

"Com.  V.  Kenney,  120  Mass.  387;  Hutchins  v.  Kimmell,  31  Mich.  126, 
18  Am.  Rep.  164. 

[32] 


CHAP,   IV.]  PROOF   OF   MARRIAGE.  [§  54. 

§  54.     Presumptions  flowing  from  xaarriage  ceremony. 

All  the  presumptions  necessary  to  make  a  marriage  valid 
attach  on  proof  of  a  formal  ceremony  of  marriage  by  a  person 
assuming  to  act  as  a  minister  of  the  gospel,  followed  by  co- 
habitation under  the  belief  of  the  parties  that  they  are  law- 
fully married.  And  the  burden  is  on  those  who  attack  the 
validity  of  the  marriage  to  show  its  invalidity  by  clear,  dis- 
tinct, positive  and  satisfactory  proof.  ^^ 

17  Megginson's  Estate,  21  Ore.  387,  28  Pac.  388, 14  L.  R.  A.  540  and  note. 


[33] 


§56.] 


THE    LAW    OF    MARRIAGE    AND    DIVORCE,      [CHAP.  V. 


CHAPTER  V. 


NULLITY    OF   MARRIAGE. 


55.  Distinction  between  "divorce" 

and  "nullity." 

56.  Jurisdiction  of  nullity  suits. 

57.  Parties  to  nullity  suit. 


§  58.  Delay  in  bringing  suit. 

59.  Grounds     for     annulment     of 
marriage. 


§  55.     Distinction  between  "  divorce  "  and  "  nullity." 

Although  the  term  "divorce"  is  sometimes  used  to  designate 
a  suit  for  the  annulment  of  a  marriage  ,  it  is  generally  conceded 
that  such  use  is  a  misnomer.  There  cannot  possibly  be  a 
decree  of  divorce  or  a  change  in  the  legal  status  where  no 
marriage  existed,  while  a  suit  for  annulment  determines  what 
the  status  of  the  parties  is  without  changing  it.  As  a  general 
rule  nullity  suits  are  abated  by  the  death  of  one  of  the  parties. 
The  question  of  alimony  and  property  rights  does  not  enter 
into  nullity  suits,  except  that  in  some  cases  alimony  ^pendente 
lite  may  be  allowed.^ 

§  56.     Jurisdiction  of  nullity  suits. 

Jurisdiction  in  nullity  suits  is  usually  conferred  by  statute 
in  specific  terms,  as  distinct  from  that  of  divorce  suits,  or  in 
terms  giving  jurisdiction  to  both  classes  of  suits,  generally, 
and  as  inclusive  in  the  general  powers  of  a  court  of  equity. 
Unless  such  jurisdiction  is  expressly  conferred,  it  will  not  be 
inferred  from  a  statute  giving  general  jurisdiction  to  courts,^ 
It  is  sometimes  held  that  courts  of  equity  in  the  exercise  of 

1  Eichhoff's  Case,  101  Cal.  600,  36  Pac.  11 ;  Rooney  v.  Rooney,  54  N.  J,  Eq. 
231,  34  Atl.  682;  Brinkley  v.  Brinkley,  50  N.  Y.  184,  10  Am.  Rep.  460; 
Stewart  v.  Vandervort,  34  W.  Va.  524. 

2  Ridgely  v.  Ridgely,  79  Md.  298,  29  Atl.  597,  25  L.  R.  A.  800  and  note; 
Kelley  v.  KeUey,  161  Mass.  Ill,  36  N.  E.  837,  25  L.  R.  A.  806;  Le  Barron 
V.  Le  Barron,  35  Vt.  365. 

[34] 


CHAP,    v.]  NULLITY    OF    MARRIAGE.  [§  57. 

their  general  jurisdiction  may  annul  marriages  for  such  causes 
as  would  be  ground  for  annulling  any  other  void  contract, 
such  as  fraud,  duress,  insanity,  or  similar  cause.^  As  im- 
potency  renders  the  marriage  voidable  only,  it  has  been  held 
that  equity  will  not  assume  jurisdiction  and  annul  such  a 
marriage  on  the  ground  of  fraud.'*  The  domicil  of  the  parties 
and  not  the  place  of  marriage  determines  where  the  suit  for 
nullity  must  be  brought.^ 

§  57.     Parties  to  nullity  suit. 

A  petition  for  the  annulment  of  a  marriage  should  be  brought 
by  one  of  the  parties  and  defended  by  the  other  party  to  the 
marriage.  But  in  case  of  persons  of  legal  incapacity  through 
insanity,  youth,  or  similar  cause,  the  suit  may  sometimes  be 
begun  and  defended  by  the  guardian  of  such  party,  either 
when  appointed  as  guardian  ad  litem  or  generally.  In  some 
states  it  is  provided  by  statute  that  certain  public  officers  or 
attorneys  specially  appointed  shall  appear  and  represent  the 
interests  of  the  state  or  of  one  of  the  parties." 

§  58.     Delay  in  bringing  suit. 

The  same  rule  that  applies  to  delay  in  divorce  suits  ^  applies 
to  suits  for  annulment,  and  where  the  delay  is  of  such  length 
and  character  as  to  cause  suspicion  of  the  good  faith  of  the 
party,  unless  the  same  is  capable  of  explanation,  the  suit 
will  be  dismissed.  For  example,  after  a  wife  has  lived  with 
her  husband  for  ten  years,  it  is  too  late  to  bring  a  biU  for 

3  Le  Brun  v.  Le  Brun,  55  Md.  496;  Maier  v.  Circuit  Judge,  112  Mich.  491, 
70  N.  W.  1032;  True  v.  Ranney,  21  N.  H.  52,  53  Am.  Dec.  164;  Sinclair  v. 
Sinclair,  57  X.  J.  Eq.  222,  40  Atl.  679;  McClurg  v.  Terry,  21  N.  J.  Eq.  225; 
Ward  V.  Bailey,  118  N.  C.  55,  23  S.  E.  926. 

*  Anonymous,  24  N.  J.  Eq.  19. 

5  Blumenthal  v.  Tannenholz,  31  N.  J.  Eq.  194;  Barney  v.  Cuness,  68 
Vt.  51,  33  Atl.  897. 

« Cowan  V.  Cowan,  139  Mass.  377,  1  X.  E.  152;  Gamett  v.  Gamett,  114 
Mass.  379,  19  Am.  Rep.  369;  Denny  v.  Denny,  90  Mass.  311. 

7  See  injra,  p.  \Zi' 

[  35  ] 


§  59.]  THE   LAW   OF  MARRIAGE   AND    DIVORCE.  [CHAP.   V. 

annulment  on  the  ground  of  impotency.*  Again,  the  lapse  of 
twenty-two  years  after  the  discovery  of  the  alleged  insanity, 
before  filing  a  bill  to  avoid  the  marriage  on  that  ground  is  a 
bar  to  the  relief  sought.^ 

In  many  states  there  is  an  express  statute  of  limitations  as 
to  such  suits,  which  statute,  as  a  rule  is  narrowly  construed. 

§  59.     Grounds  for  annulment  of  marriage. 

The  grounds  for  annulment  of  marriage  vary  in  the  differ- 
ent states.  In  some  states  the  following  marriages  are  void 
without  legal  process ;  in  others,  a  suit  must  be  instituted :  biga- 
mous marriages;  unnatural  marriages;  marriages  of  children; 
marriages  of  idiots;  marriages  of  msane  persons;  incestuous 
marriages;  fraudulent  marriages;  compulsory  marriages; 
mistaken  identity;  impotency;  miscegenation. i° 

8  Lorenz  v.  Lorenz,  93  111.  376. 

8  Rawdon  v.  Rawdon,  28  Ala.  565. 

10  See  divorce  laws  of  the  several  states,  p.  — . 


[36] 


CHAP.  VI.] 


DIVORCE   IN   GENERAL. 


t§60. 


CHAPTER  VI. 


DIVORCE    IN   GENERAL. 


60.  Legislative  divorces. 

61.  Judicial  divorces. 

62.  Absolute    divorce    (a    vinculo 

matrimonii) . 


§   63.  Partial    divorce    (a    mensa  el 
thoro) . 
64.  Legal  separations. 
6o.  Deeds  of  separation. 


§  60.     Legislative  divorces. 

In  early  times  divorces  were  granted  by  the  legislature,  and 
may  be  now,  unless  the  constitution  of  the  state  prohibits  it. 
But  as  a  rule  they  have  become  obsolete,  being  looked  upon 
with  disfavor  and  expressly  prohibited  in  nearly  all  of  the 
states.  In  those  states  where  they  are  not  prohibited,  the 
legislature  can  only  grant  divorces  for  causes  outside  of  those 
laid  down  in  the  divorce  statutes.^ 

§  61.     Judicial  divorces. 

A  divorce  is  a  separation  of  husband  and  wife  by  a  judicial 
decree.  The  bond  of  marriage  which  unites  a  husband  and 
wife  can  be  legally  severed  only  by  death  or  an  absolute  di- 
vorce, and  the  courts  can  grant  divorces  only  for  such  causes 
as  are  prescribed  by  statute.  Divorces  are  triangular.  Not 
only  are  the  parties  themselves  interested,  but  the  public 
generally  is  interested  in  the  preservation  of  the  marriage 
relation,  and  in  some  states  the  statutes  prescribe,  that  in 
uncontested  cases  the  district  attorney  or  an  attorney  ap- 
pointed by  the  court  must  defend.^ 

§  62.     Absolute  divorce  (a  vinculo  matrhnonii). 

An  absolute  divorce  {a  vinculo  matrimonii — from  the  bond 
of  matrimony),  is  a  full  and  complete  dissolution  of  the  mar- 

1  Teft  V.  Teft,  3  Mich.  67;  Richardson  v.  Wilson,  8  Yerg.  (Tenn.)  67. 
'  See  divorce  laws  of  Kentucky,  Louisiana,  Michigan,  Washington. 

[37] 


§  64.]  THE    LAW   OF   MARRIAGE    AND    DIVORCE.  [CHAP.    VI. 

riage  tie,  abrogating  all  marital  rights  and  obligations  and 
leaving  both  parties  to  all  intents  and  purposes,  single  persons.' 

§  63.     Partial  divorce  { a  mensa  et  thoro ). 

A  partial  divorce  does  not  dissolve  the  marriage  tie.  It  is 
a  mere  legal  separation,  a  divorce  from  bed  and  board  only, 
simply  freeing  the  innocent  party  from  the  presence  and 
control  of  the  guilty  one  until  they  agree  to  renew  cohabita- 
tion.^ And  if  the  innocent  party  is  the  wife,  the  court  will  or- 
dinarily give  her  a  suitable  allowance  from  the  income  and 
estate  of  her  husband. 

Kent  says  these  qualified  divorces  are  regarded  as  rather 
hazardous  to  the  morals  of  the  parties.  The  English  courts 
have  said  it  is  throwing  the  parties  back  upon  society  in  the 
undefined  and  dangerous  characters  of  a  husband  without  a 
wife,  and  a  wife  without  a  husband. 

Such  a  divorce  neither  dissolves  the  marriage  tie  nor  gives 
either  party  the  right  to  marry  again. ^  It  does  not  even 
divest  the  guilty  party  of  his  or  her  interest  as  husband  or  wife 
in  the  estate  of  the  other.^  It  is  no  defence  to  a  civil  or  criminal 
charge  of  adultery,  or  an  indictment  for  bigamy.  After  a 
divorce  from  bed  and  board  it  is  presumed  that  the  marital 
relations  between  the  parties  have  ceased,  and  if  children  are 
born  they  will  be  considered  illegitimate  until  proof  to  the 
contrary  appears.  They  will,  however,  upon  proof  of  subse- 
quent cohabitation  be  held  to  be  legitimate.^ 

§  64.     Legal  separations. 

Legal  separations  are  expressly  prohibited  in  most  states, 
and  in  others  are  unknown.  It  has  been  a  disputed  question 
whether  they  serve  any  useful  purpose.     The  weight  of  argu- 

3  Barber  v.  Root,  10  Mass.  260;  Hunt  v.  Thompson,  61  Mo.  148. 
*  Meehan  v.  Meehan,  2  Barb.  (N.  Y.)  377;  Nathans  v.  Nathans,  2  Phila. 
(Pa.)  393. 

5  Ellison  V.  Mayor,  53  Ala.  558. 

6  Clark  V.  Clark,  6  Watts  &  S.  (Pa.)  85. 

^  2  Bishop,  Marriage  and  Divorce,  §§  726-741. 

[38] 


CHAP.  VI.]  DIVORCE    IN   GENERAL.  [§   65. 

ment  and  authority  is  against  them.  To  be  sure,  they  may 
possibly  secure  a  judicial  settlement  of  matrimonial  troubles 
and  give  an  innocent  wife  protection  from  a  cruel  or  drunken 
husband;  but  the  same  result  could  be  obtained  by  divorce, 
alimony,  and  a  restraining  order  or  injunction,  and  leave  the 
parties  in  a  much  better  position  for  themselves  and  the  com- 
munity.* 

A  legal  separation  deprives  the  parties  to  the  marriage  of 
the  rights  of  cohabitation,  and  the  procreation  of  legitimate 
children.  As  Mr.  Justice  Swift  says,  "it  places  them  in  a  sit- 
uation where  there  is  an  irresistible  temptation  to  the  commis- 
sion of  adultery,  unless  they  possess  more  frigidity,  or  more 
virtue  than  generally  falls  to  the  share  of  human  beings."^  Mr, 
Bishop  says,  "it  is  destitute  of  justice  and  one  of  the  most 
corrupting  devices  ever  imposed  by  serious  natures  on  blind- 
ness and  credulity.  It  was  tolerated  only  because  men  be- 
lieved as  a  part  of  their  religion  that  dissolution  would  be  an 
offence  against  God,  whence  the  slope  was  easy  towards  any 
compromise  with  good  sense,  and  as  the  fruits  of  compromise 
we  have  this  ill-begotten  monster.  It  not  only  punishes  the 
guilty  party  but  it  punishes  the  innocent  party  as  well  and 
should  be  done  away  with  on  the  ground  that  it  is  against 
public  policy."  ^° 

In  South  Carolina  this  is  the  only  kind  of  a  separation 
granted.  ^^ 

§  65.     Deeds  of  separation. 

Contracts  entered  into  between  husband  and  wife  to  live 
apart,  to  be  divorced,  or  to  relinquish  claim  to  the  children, 
are  absolutely  void.  They  have  a  right  to  live  apart,  and 
frequently  enter  into  agreements  and  obligations  with  each 

8  Ellison  V.  Mayor,  53  Ala.  558. 

9  Swift's  System,  Conn.  193. 

10  Bishop,  Marriage  and  Divorce,  §  29. 
"S.  C.  Const.  (1895),  art.  17.  §  3. 

[39] 


§  65.]  THE   LAW    OF    MARRIAGE   AND    DIVORCE.  [cHAP.    VI. 

Other,  modifying  their  legal  relation  of  husband  and  wife. 
By  the  great  weight  of  authority  these  contracts  have  no 
validity.  12  'pj^g  parties  may,  however,  by  agreement  consent 
to  actions  which  affect  their  property  rights.  The  husband 
may  relinquish  his  right  of  curtesy  or  the  wife  her  right  of 
dower;  ^^  but  a  voluntary  separation  is  a  complete  bar  to  an 
absolute  divorce.  ^^ 

12  Joyce  V.  McAvoy,  31  Cal.  273;  Goodwin  v.  Goodwin,  4  Day  (Conn.), 
343;  Chapman  v.  Gray,  8  Ga.  341;  Phillips  v.  Meyers,  82  111.  67;  Dutton  v. 
Button,  30  Ind.  452;   Helms  v.  Franciscus,  2  Bland.  Ch.  (Md.)  544. 

13  Pinkston  v.  McLemore,  31  Ala.  308. 
"  Lynch  v.  Lynch,  33  Md.  328. 


[40  1 


CHAP.  VII.] 


ADULTERY. 


[§66. 


CHAPTER  VIL 


ADULTERY. 


66.  Adultery    as    a    ground     for 

divorce. 

67.  The  act  must  be  voluntary. 

68.  Particeps    criminis    must     be 

named  if  known. 

69.  Appearance  of  particeps  crim- 

inis. 

70.  Circumstantial  evidence. 

71.  Adulterous   disposition. 

72.  Opportunity. 

73.  Keeping  concubine. 

74.  Evidence  of  private  detectives. 

75.  Entering  house  of  ill-fame. 

76.  Venereal  disease  as  evidence. 

77.  Evidence  and  letters  of  para- 

mour. 

78.  Confessions  must  be  corrobo- 

rated. 

79.  Connivance. 

80.  Connivance  should  be  pleaded. 


§  81.  Connivance    is    frequently    a 
good  defence. 

82.  Evidence    of    prostitutes    and 

pimps. 

83.  Reputation  for  chastity. 

84.  Evidence  of  familiarities. 

85.  Adultery  by  force. 

86.  Mistake  of  law. 

87.  Mistake  of  fact. 

88.  Separation  by  consent  no  bar 

to  suit  for  adultery. 

89.  Knowledge  of  adultery. 

90.  Amendment  to  libel  or  peti- 

tion. 

91.  Effect  of  divorce  for  adultery 

on  legitimacy  of  children. 

92.  Xon-access. 

93.  Specifications  of  adultery. 

94.  Record  of  conviction. 


§  66.     Adultery  as  a  ground  for  divorce. 

Adultery  is  the  voluntary  sexual  intercourse  of  a  married 
man  or  woman  with  a  person  other  than  the  offender's  wife 
or  husband.^  Adultery  is  a  cause  for  absolute  divorce  in 
every  state  where  divorces  are  granted. 

In  Kentucky,  a  divorce  is  not  granted  for  adultery  of  the 
husband,  but  either  party  is  entitled  to  a  divorce,  where  the 
other  is  living  in  open  adultery  with  another  man  or  woman. ^ 

1  Mmer  v.  People,  58  111.  59;  Hood  v.  State,  56  Ind.  263, 274,  26  Am.  Rep. 
21;  Nichols  v.  Nichols,  31  Vt.  328,  73  Am.  Dec.  352. 
2Ky.  Gen.  Stats.  (1903),  §  2117. 

[41] 


§  68.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  VII. 

The  husband  may  obtain  a  divorce  from  his  wife  for  her 
adultery  or  such  lewd,  lascivious  behavior  as  proves  her  to  be 
unchaste,  without  actual  proof  of  an  act  of  adultery,^ 

In  North  Carolina,  if  the  parties  have  separated  and  one  is 
living  in  adultery,  an  absolute  divorce  is  granted,  or  if  the  wife 
commits  adultery,  the  husband  is  entitled  to  a  divorce."* 

It  has  been  held  that  separate  acts  of  adultery  without 
cohabitation  do  not  constitute  living  in  adultery.^  And  in 
North  Carolina  the  plaintiff  must  prove  separation  as  well  as 
adultery.^ 

§  67.     The  act  must  be  voluntary. 

The  act  must  be  voluntary  and  criminal,  for,  if  the  woman 
is  insane  at  the  time  or  is  ravished,  she  does  not  commit  adul- 
tery, or  if  the  act  is  committed  under  a  mistaken  belief  that 
the  husband  or  wife  is  dead,  it  is  no  ground  for  divorce.^ 

§  68.     Particeps  criminis  must  be  named  if  known. 

In  bringing  a  libel  or  petition  for  divorce  on  the  ground  of 
adultery,  the  name  of  the  particeps  criminis  should  always  be 
inserted  when  it  is  known.  If  unknown  to  the  petitioner,  it 
should  be  so  stated  in  the  libel ;  also  the  time  and  place  where 
the  act  was  committed,  if  it  is  known. ^  But  if  the  libel  alleges 
that  the  exact  time  and  place  of  the  adultery  are  unknown,  it 
will  be  sufficient  to  aUege  that  the  offence  was  committed  in  a 

3Ky.  Gen.  Stats.  (1903),  §  2117. 

4  Long  V.  Long,  2  Hawks  (N.  C),  189. 

8  Long  V.  Long,  2  Hawks  (N.  C),  189.  See  also  Hall  v.  State,  53  Ala. 
463;  Carotti  v.  State,  42  Miss.  334;  Richardson  v.  State,  37  Tex.  346. 

8  Morris  v.  Morris,  75  N.  C.  168;  Steel  v.  Steel,  104  N.  C.  631. 

7Mims  V.  Mims,  33  Ala.  98;  Wray  v.  Wray,  19  Ala.  522;  Broadstreet  v. 
Broadstreet,  7  Mass.  474;  People  v.  Chapman,  62  Mich.  280,  28  N.  W.  896, 
4  Am.  St.  Rep.  857;  Valleau  v.  Valleau,  6  Paige  (N.  Y.),  207;  Nichols  v. 
Nichols,  31  Vt.  328,  73  Am.  Dec.  352. 

8  Holston  V.  Holston,  23  Ala.  777;  Choate  v.  Choate,  3  Mass.  391;  Miller 
V.  Miller,  20  N.  J.  Eq.  216;  Wood  v.  Wood,  2  Paige  (N.  Y.),  108;  Sanders  v. 
Sanders,  25  Vt.  713. 
[42] 


CHAP.   VII.]  ADULTERY.  [§  69. 

certain  town  or  city  between  specified  dates. ^  And  if  the 
libel  states  that  the  particeps  criminis  is  unknown  to  the 
libellant,  the  evidence  must  show  such  to  be  the  fact.^°  Ac- 
cordingly where  the  libel  states  that  the  adultery  was  com- 
mitted with  a  certain  person,  and  the  evidence  shows  it  to  be 
with  another  person  or  an  unknown  person,  it  is  insufficient." 

§  69.     Appearance  of  particeps  criminis. 

At  common  law  it  is  well  settled  that  an  alleged  paramour 
or  particeps  criminis  has  no  legal  right  to  appear  or  intervene 
in  divorce  proceedings,  although  his  or  her  character  or  reputa- 
tion may  be  directly  assailed,  but  there  is  a  tendency  on  the 
part  of  courts  and  legislatures  to  permit  an  alleged  particeps 
criminis  to  intervene  and  defend  his  or  her  good  name.^^  In 
Massachusetts,  by  express  statute,  the  alleged  particeps  criminis 
may  appear  as  a  matter  of  right,  whether  the  libel  is  contested 
or  not.^^  And  by  rule  of  court  in  several  states,  the  co-respond- 
ent must  be  notified  that  he  or  she  may  appear  and  contest  if 
he  or  she  so  desires.^^ 

§  70.     Circumstantial  evidence. 

Adultery  may  be  proved  by  circumstantial  evidence,  but 
the  evidence  must  be  clear  and  positive,  showing  an  oppor- 
tunity as  to  time  and  place  to  commit  the  act,  and  a  willingness 
on  the  part  of  the  defendant. ^^  The  circumstances  must  be 
such  as  would  lead  the  guarded  discretion  of  a  reasonable  and 
just  man  to  no  other  conclusion. ^^  As  the  crime  is  almost 
invariably  clandestine  and  committed  only  when  every  pre- 

»  Scheffling  v.  Scheffling,  44  N.  J.  Eq.  438, 15  Atl.  577;  MitcheU  v.  Mitchell, 
61  N.  Y.  398. 

10  Miller  v.  Miller,  20  N.  J.  Eq.  216. 

11  Washburn  v.  Washburn,  5  X.  H.  195. 

12  Clay  V.  Clay,  21  Hun  (N.  Y.),  609. 

13  Mass.  Rev.  Laws,  c.  152,  §  9. 

1*  See  divorce  laws  of  the  several  states,  p.  233. 
15  Pollock  V.  Pollock,  71  X.  Y.  137. 
18  Mosser  v.  Mosser,  29  M&.  313. 

[43] 


§  71.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.   VII. 

caution  is  taken  to  preclude  the  possibility  of  discovery,  and 
as  it  is  very  rarely  indeed  that  the  parties  are  surprised  in  the 
direct  act  of  adultery,  all  the  circumstances  should  be  care- 
fully considered."  And  what  would  be  evidence  in  one  case 
might  not  be  in  another.  A  preponderance  of  evidence  is  all 
that  is  required.  The  inference  of  adultery  should  not  be 
drawn  from  circumstances  reasonably  reconciled  with  the 
presumption  of  innocence.  ^^  Neither  should  adultery  be  pre- 
sumed where  the  facts  and  circumstances  relied  upon  may 
as  well  be  attributed  to  an  innocent  as  a  guilty  motive. ^^ 
Direct  proof  of  adultery  is  not  required.  It  may  be  shown 
by  any  circumstances  that  naturally  lead  the  mind  to  its 
incurrence  by  a  fair  inference  as  a  natural  conclusion. ^^^  If 
the  evidence  is  reasonably  consistent  with  the  innocence  of 
the  defendant,  it  should  always  be  interpreted  in  his  favor. ^^ 
But  where  it  is  impossible  from  all  the  circumstances  to  con- 
strue the  evidence  with  the  theory  of  innocence,  a  decree  will 
be  granted. ^2 

§  71.     Adulterous  disposition. 

Evidence  of  adulterous  acts  committed  with  a  certain  person 
after  the  filing  of  the  libel  is  admissible  to  show  the  disposition 
and  the  relations  between  the  parties  at  the  time  the  acfultery 
complained  of  was  committed. ^^    Where  adultery  is  alleged 

"Daily  v.  Daily,  64  111.  329;  Com.  v.  Bowers,  121  Mass.  45;  Com.  v. 
Gray,    129   Mass.    474. 

18  Mosser  v.  Mosser,  29  Ala.  313;  Jeter  v.  Jeter,  36  Ala.  391. 

19  Allen  V.  Allen,  101  N.  Y.  658,  5  N.  E.  341. 

20  Bast  V.  Bast,  82  111.  584. 

21  Jeter  v.  Jeter,  36  Ala.  391;  Mosser  v.  Mosser,  29  Ala.  313;  Powell  v. 
Powell,  80  Ala.  595;  State  v.  Stiles,  62  111.  App.  408;  Aitchison  v.  Aitchi- 
son,  99  Iowa,  93;  Burke  v.  Burke,  44  Kan.  307,  21  Am.  St.  Rep.  283; 
Hurtzig  V.  Hurtzig,  44  N.  J.  Eq.  329;  Steffens  v.  Steffens,  16  Daly  (N.  Y.), 
363;  Herberger  v.  Herberger,  16  Ore.  327,  14  Pac.  70. 

22  Jeter  v.  Jeter,  36  Ala.  391 ;  Names  v.  Names,  67  Iowa,  383, 25  N.  W.  671 . 

23  Thayer  v.  Thayer,  101  Mass.  HI,  100  Am.  Dec.  110;  Com.  v.  Merriam, 
31  Mass.  518,  25  Am.  Dec.  420. 

[44] 


CHAP.  VII.]  ADULTERY.  [§72. 

by  the  libellee  with  several  persons,  evidence  of  sexual  inter- 
course between  the  libellee  and  one  of  the  persons  before  the 
marriage  is  held  admissible,  as  determining  the  character  of 
the  alleged  adulterous  acts  occurring  after  the  marriage. ^^ 
And  upon  the  trial  of  an  indictment  for  adultery,  evidence  of 
other  acts  of  adultery  committed  by  the  same  parties,  near  the 
time  charged,  though  in  another  county,  is  admissible  to  sup- 
port ^^  the  indictment. 

§  72.     Opportunity. 

To  grant  a  divorce  for  adultery  direct  evidence  is  not  re- 
quired; but  there  must  be  shown  the  opportunity  for  the  act 
and  the  will  to  commit  it.^^  Mere  inprudence,  indiscretion, 
or  folly,  is  not  conclusive  evidence.  Mere  evidence  that  there 
was  an  opportunity  for  illicit  intercourse  is  held  to  be  insuffi- 
cient. There  must  be  some  accompanying  circumstance 
which  fairly  induces  the  belief  that  the  residence  of  the  parties 
under  the  same  roof  was  not  for  a  proper  purpose.^^ 

§  73.     Keeping  concubine. 

Living  in  open  adultery  or  keeping  a  concubine,  within  the 
meaning  of  a  statute  granting  a  divorce  for  such  cause,  may 
consist  in  being  kept  by  her  in  her  own  house.^* 

§  74.     Evidence  of  private  detectives. 

One  who  is  hired  for  the  purpose  of  watching  and  detecting 
in  wrong  a  husband  or  wife,  and  whose  services  are  to  extend 
to  the  giving  of  evidence,  based  upon  his  work  as  such  de- 
tective, is  looked  upon  with  some  degree  of  suspicion  as  a 
witness,  although  his  testimony  is  to  have  the  same  considera- 

24  Brooks  V.  Brooks,  145  Mass.  574,  14  N.  E.  777,  1  Am.  St.  Rep.  485. 

25  Com.  V.  Nichols,  114  Mass.  285,  19  Am.  Rep.  346. 
2«  Berckmans  v.  Berckmans,  16  N.  J.  Eq.  122. 

27  Pollock  V.  PoUock,  71  N.  Y.  137. 

28  Adams  v.  Hurst,  9  La.  243. 

[45] 


§  76.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  VII. 

tion  as  that  of  any  other  witness,  if  nothing  appears  to  im- 
peach his  credibility.^* 

§  75.     Entering  house  of  ill-fame. 

Where  it  has  been  proved  that  the  defendant  entered  a 
house  of  ill  fame,  it  has  been  held  sufficient  for  granting  a 
decree.^"  But  such  evidence  is  not  always  conclusive  and 
may  be  rebutted  by  a  satisfactory  explanation.^^ 

§  76.     Venereal  disease  as  evidence. 

Where  one  has  contracted  a  venereal  disease  after  marriage, 
it  is  only  prima  facie  proof  of  adultery.^^  But  it  raises  a  very 
strong  presumption  of  guilt  and  the  court  will  consider  any 
circumstance  tending  to  affirm  this  presumption.^^  Where 
the  disease  has  been  contracted  long  after  marriage,  adultery 
may  be  inferred.^'*  But  where  the  disease  presents  itself 
shortly  after  marriage,  adultery  will  not  be  inferred,  as  it  may 
be  due  to  secondary  syphilis,  or  it  may  have  been  contracted 
before  marriage.^^  And  where  one  has  gonorrhoea,  it  is  not 
necessarily  due  to  adultery,  it  may  be  due  to  causes  consistent 
with  the  innocence  of  both  husband  and  wife.^^  The  hus- 
band's adultery  will  not  be  inferred  from  the  presence  of 
syphilis  in  the  wife,  because  she  may  have  contracted  the 
disease  by  her  own  adultery,  by  contagion,  or  by  accident. 
Either  of  these  methods  is  consistent  with  his  innocence." 

29  Blake  v.  Blake,  70  111.  622;  Com.  v.  Ingersoll,  145  Mass.  231,  13  N.  E. 
613;  Throckmorton  v.  Throckmorton,  86  Va.  768,  11  S.  E.  289. 

30  Daily  v.  Daily,  64  111.  329. 

31  Latham  v.  Latham,  30  Gratt.  (Va.)  307. 

32  Johnson  v.  Johnson,  14  Wend.  (N.  Y.)  637. 

33  Mount  V.  Mount,  15  N.  J.  Eq.  162;  Cook  v.  Cook,  32  N.  J.  Eq.  475; 
Ferguson  v.  Ferguson,  1  Barb.  Ch.  (N.  Y.)  604. 

34  North  V.  North,  5  Mass.  320. 

35  Mount  V.  Mount,  15  N.  J.  Eq.  162. 

38  Holthoefer  v.  Holthoefer,  47  Mich.  260,  11  N.  W.  150.  But  see  Cook 
V.  Cook,  32  N.  J.  Eq.  475. 

3'  Homburger  v.  Homburger,  46  How.  Pr.  (N.  Y.)  346. 

[46] 


CHAP.   VII.]  ADULTERY.  [§77. 

Neither  is  it  established  that  the  husband  had  a  venereal 
disease  by  testimony  that  the  husband  had  stains  and  spots 
on  his  linen,  when  the  witness  is  unable  to  identify  the  linen 
as  that  worn  by  the  husband. ^^  Neither  will  a  venereal 
disease  be  inferred,  where  the  only  evidence  is  that  the  hus- 
band had  in  his  possession  medicines  supposed  by  physicians 
to  be  used  in  treating  such  disease.  But  where  the  husband 
was  suffering  from  a  venereal  disease  at  the  time  of  the  mar- 
riage, and  the  fact  was  unknown  to  the  wife  at  the  time,  but 
was  discovered  by  her  soon  after,  and  she  at  once  left  him, 
having  never  cohabited  with  him,  the  court  held  that  this 
was  a  good  ground  for  annulling  the  marriage  on  the  ground 
of  fraud. ^^  Proof  of  the  existence  of  a  venereal  disease  after 
marriage,  unexplained,  is  proof  of  adultery.'*" 

§  77.     Evidence  and  letters  of  paramour. 

The  evidence  of  a  paramour,  or  particeps  criminis,  if  ad- 
missible, is  to  be  very  carefully  scrutinized,  as  it  is  of  the 
weakest  kind  and  usually  should  be  corroborated.^^  As  a 
witness,  his  own  testimony  may  be  used  to  discredit  him."*^ 
A  clandestine  correspondence  conveying  strong  terms  of  at- 
tachment may  show  a  criminal  desire. ^^  The  evidence  of  an 
alleged  paramour,  being  particeps  criminis,  is  weak  but  is  not 
rejected.'*^  A  divorce  should  never  be  granted  upon  the  un- 
corroborated testimony  of  a  particeps  criminis. '^^ 

38  James  v.  James,  29  Xeb.  533,  45  X.  W.  777. 

39  Smith  V.  Smith,  171  Mass.  404,  50  X.  E.  933,  68  Am.  St.  Rep.  440, 
41  L.  R.  A.  800;  Crane  v.  Crane,  62  X.  J.  Eq.  21,  49  Atl.  734;  Ryder  v. 
Ryder,  66  Vt.  158,  28  Atl.  1029,  44  Am.  St.  Rep.  833. 

40  Jones  V.  Jones,  18  X.  J.  Eq.  33,  90  Am.  Dec.  607. 

41  Payne  v.  Payne,  42  Ark.  235;  Wahle  r.  Wahle,  71  111.  510;  Evans  v. 
Evans,  93  Ky.  510,  20  S.  W.  605;  Simons  r.  Simons,  13  Tex.  468. 

42  Lewis  V.  Lewis,  9  Ind.  105;  Herrick  r.  Herrick,  31  Mich.  298. 

43  Black  V.  Black,  30  X.  J.  Eq.  228. 

44  Berckmans  v.  Berckmans,  16  X'.  J.  Eq.  122. 
«  Clare  v.  Clare,  19  X.  J.  Eq.  37. 

[47] 


§  so.]  THE    LAW    OF    MAERIAGE    AND    DIVORCE.  [CHAP.  VII. 

§  78.     Confessions  must  be  corroborated. 

The  confessions  of  the  party  charged,  uncorroborated  by 
other  evidence,  are  not  sufficient.  But  the  libellee's  confes- 
sions of  adultery  are  sufficient  evidence  to  authorize  a  decree 
of  divorce,  if  the  circumstances  proved  by  other  evidence  show 
that  there  is  no  collusion. ^^ 

In  Alabama,  no  confession  will  be  accepted  as  evidence. 
In  Arizona,  confessions  and  declarations  of  parties  must  be 
corroborated.  In  Maine,  the  confessions  of  the  guilty  party, 
if  there  is  no  evidence  of  collusion,  may  be  received  in  proof 
of  adultery. ^^  In  Arkansas,  when  the  charge  is  adultery,  the 
courts  are  reluctant  to  grant  a  divorce  upon  the  uncorrobo- 
rated testimony  of  a  particeps  criminis^^ 

§  79.     Connivance. 

Connivance  is  the  consent  of  the  complainant  to  the  re- 
spondent's commission  of  the  offence  complained  of.  This 
consent  may  be  either  express  or  implied,  and  it  is  a  bar  to 
divorce,  even  for  adultery  committed  with  the  consent  or 
connivance  of  the  other.  This  defence  is  seldom  used  and  is 
in  the  nature  of  an  estoppel  of  the  plaintiff.^^  It  does  not, 
however,  act  as  an  estoppel,  where  the  acts  connived  at  oc- 
curred at  a  different  time  and  after  the  acts  alleged  as  adul- 
terous.^*^ Connivance  is  no  defence  to  subsequent  acts  of 
adultery.  ^^ 

§  80.    Connivance  should  be  pleaded. 

In  setting  up  the  defence  of  connivance  it  must  be  pleaded 
specially.  It  does  not  of  itself  admit  adultery,  and  can  be 
consistently  pleaded  with  a  denial  of  guilt.^^ 

46  Billings  V.  Billings,  28  Mass.  461. 

<7  Vance  v.  Vance,  8  Me.  132. 

48  Payne  v.  Payne,  42  Ark.  235. 

«  Hedden  v.  Hedden,  21  N.  J.  Eq.  61. 

so  Morrison  v.  Morrison,  142  Mass.  361,  8  N.  E.  59,  65  Am.  Rep.  688. 

51  Viertel  v.  Viertel,  99  Mo.  App.  710,  75  S.  W.  187. 

52  Moorsom  v.  Moorsom,  3  Hog.  Ecc.  87;   Rogers  v.  Rogers,  3  Hog.  Ecc.  57. 

[48] 


CHAP.    VII.]  ADULTERY.  [§81. 

A  woman  who  authorizes  her  attorney  to  employ  detectives 
to  watch  her  husband,  whom  she  suspects  of  infidehty,  for 
the  purpose  of  obtaining  evidence  which  will  enable  her  to 
procure  a  divorce,  and  who  goes  with  them  at  a  time  ap- 
pointed to  surprise  him  iii  a  compromising  position  with  a 
lewd  woman,  employed  by  them  for  that  purpose,  may  be 
found  to  have  known  that  the  woman's  movements  were 
governed  by  them,  so  as  to  show  connivance  on  her  part  which 
will  bar  her  right  to  divorce,  and  the  right  to  a  divorce  for 
adultery  will  be  barred,  if  plaintiff  consents  to  the  employ- 
ment of  a  person  to  allure  defendant  into  the  offence  for  which 
the  action  is  brought.  The  courts  will  use  their  discretion 
to  defeat  any  and  all  attempts  to  use  the  forms  of  the  law  of 
divorce  to  minister  to  the  caprices  of  the  fickle-minded  or  to 
the  revenger  of  the  disappomted,  or  vindictive,  or  to  the 
passions  of  the  incontinent.^^ 

§  81.     Connivance  is  frequently  a  good  defence. 

Thus,  suppose  a  husband  connives  at  the  commission  of 
adultery  by  his  wife ;  or  unduly  and  improperly  exposes  her  to 
temptation;  or  suppose  that  his  cruelty  is  so  gross  and  his 
neglect  of  her  so  wanton  as  to  drive  her,  in  desperation,  to  the 
commission  of  adultery,  she  will  be  excused.  He  cannot  suc- 
cessfully prosecute  an  action  for  divorce  against  her.^^ 

§  82.     Evidence  of  prostitutes  and  pimps. 

The  testimony  of  prostitutes  is  looked  upon  with  more 
suspicion,  if  anything,  than  that  of  any  other  particeps  criminis, 
and  corroboration  is  necessary. ^^  A  prostitute  or  a  person 
filling  the  role  of  a  "pimp"  is  not  thereby  entirely  disqualified, 

53  Dennis  v.  Dennis,  68  Conn.  186,  36  Atl.  34,  57  Am.  St.  Rep.  95,  34 
L.  R.  A.  449  and  note. 

54  Pierce  v.  Pierce,  20  Mass.  299,  15  Am.  Deo.  210;  Myers  v.  Myers,  41 
Barb.  (N.  Y.)  114. 

65  Tumey  v.  Tumey,  4  Edw.  Ch.  (N.  Y.)  466. 

4  [49] 


§  85.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  VII. 

but  the  testimony  of  such  a  person  is  not  entitled  to  the  weight 
and  consideration  that  is  required  by  the  courts.^^ 

§  83.     Reputation  for  chastity. 

Where  it  was  shown  that  the  defendant  frequently  left  her 
home  in  the  absence  of  her  husband,  and  would  be  absent 
several  days  at  a  time,  and  that  her  reputation  for  chastity 
was  bad,  the  court  held  that  this  was  not  sufficient  to  estab- 
lish the  charge  of  adultery.^'' 

§  84.     Evidence  of  familiarities. 

Evidence  of  familiarities  on  the  part  of  the  defendant  and 
the  person  with  whom  the  adultery  is  alleged  to  have  been 
committed  is  admissible  to  prove  the  adultery,  but  it  must 
be  evidence  showing  more  than-  mere  association  and  friendly 
intercourse  to  support  the  allegation.  The  entire  circum- 
stances surrounding  the  alleged  acts  of  familiarity  must  be 
taken  into  consideration  in  determining  their  character.^^ 

§  85.     Adultery  by  force. 

A  man  is  guilty  of  adultery,  even  though  the  offence  was 
committed  with  a  woman  who  was  stupefied  with  liquor  at  the 
time.^^  And,  where  the  offence  was  committed  without  the 
consent  of  the  woman,  the  man  may  be  convicted  of  adultery.^" 
Emission  is  not  necessary  to  make  the  act  of  adultery  com- 
plete; penetration  is  sufficient. ^^  What  constitutes  carnal 
knowledge  of  a  woman  must  be  the  same  in  prosecutions  for 

58  Wagoner  v.  Wagoner  (Md.),  10  Atl.  221;  Whitenack  v.  Whitenack,  36 
N.  J.  Eq.  474;  Clare  v.  Clare,  19  N.  J.  Eq.  37;  Anonymous,  17  Abb.  Pr. 
(N.  Y.)  48. 

57  Thomas  v.  Thomas,  51  111.  162. 

58  Peavey  v.  Peavey,  76  Iowa,  443,  41  N.  W.  67;  Bishop  v.  Bishop,  17 
Mich.  211 ;  Conger  v.  Conger,  82  N.  Y.  603;  Pollock  v.  Pollock,  71  N.  Y.  137. 

59  Com.  V.  Bakeman,  131  Mass.  577,  41  Am.  Rep.  248. 

60  State  V.  Sanders,  30  Iowa,  582;  State  v.  Henderson,  84  Iowa,  161, 
50  N.  W.  758. 

61  Com.  V.  Hussey,  157  Mass.  415,  32  N.  E.  362. 

[  r)0  ] 


CHAP.   VII.]  ADULTERY.  [§   86. 

adultery  as  in  prosecutions  for  rape.     Penetration  is  all  that 
is  required  to  complete  the  crime. ^^ 

§  86.     Mistake  of  law. 

A  mistake  of  law  is  no  defence  to  a  charge  of  adultery.^' 
And  where  one  has  intercourse  after  a  second  marriage,  when 
the  divorce  from  the  prior  marriage  was  illegal,  it  is  adultery, 
and  a  sufficient  ground  for  a  divorce  from  the  prior  marriage, 
though  there  was  a  hona  fide  belief  that  the  divorce  was  valid.^"* 

§  87.     Mistake  of  fact. 

Where  a  woman  has  connection  with  a  man  under  the  honest 
belief  that  he  is  her  husband,  or  where  she  has  married  a  man 
with  whom  she  has  intercourse  under  the  belief  that  her  hus- 
band is  dead,  she  is  not  guilty  of  adultery,  for  there  is  a  mis- 
take of  fact  as  to  her  standing  and  rights. ^^  But  if  the  inter- 
course continues  under  the  second  marriage  after  knowledge 
that  the  first  spouse  is  living,  she  is  guilty.^^ 

§  88.     Separation  by  consent  no  bar  to  suit  for  adultery, 

A  divorce  may  be  decreed  for  adultery  though  a  voluntary 
separation  exists  between  the  parties." 

§  89.     Knowledge  of  adultery. 

Complainant  may  be  allowed  to  prove  the  adultery  alleged, 
although  he  knew  it  some  time,  and  the  defendant  may  prove 
such  scienter  as  a  defence. ^^ 

82WaUer  v.  State,  40  Ala.  325;  State  v.  Shields,  45  Conn.  256;  Com.  v. 
Roosnell,  143  Mass.  32,  8  N.  E.  747;  Com.  v.  Squires,  97  Mass.  59;  Comstock 
V.  Com.,  50  Mass.  205;  People  v.  Crowley,  102  X.  Y.  234,  6  X.  E.  384;  Osgood 
V.  State,  64  Wis.  472,  25  X.  W.  529. 

63  Reynolds  v.  United  States,  98  U.  S.  145,  25  L.  ed.  244. 

M  Simonds  v.  Simonds,  103  Mass.  572,  4  Am.  Rep.  576;  Leith  v.  Leith, 
39  N.  H.  20. 

65  Valleau  v.  Valleau,  6  Paige  (X.  Y.),  207. 

66  Mathewson  v.  Mathewson,  18  R.  I.  456,  28  Atl.  801,  49  Am.  St.  Rep.  782. 

67  Anderson  v.  Anderson,  1  Edw.  Ch.  (X.  Y.)  380. 

68  McCafferty  v.  McCafferty,  8  Blackf.  (Ind.)  218. 

[51] 


§  92.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  VII. 

§  90.     Amendment  to  libel  or  petition. 

The  bill  may  be  amended  in  accordance  with  the  facts  by 
setting  out  the  name  of  the  particeps  criminis  or  by  stating 
that  the  name  is  unknown.^^  If  the  name  of  the  particeps 
criminis  is  unknown,  the  offence  must  be  identified  by  other 
particulars,  such  as  the  description  of  the  unknown  person  or 
designation  of  time,  place,  and  circumstances  as  will  enable 
the  defendant  and  the  court  to  distinguish  the  particular  of- 
fence charged  in  the  libel  or  petition.  And  where  the  libel 
alleges  the  act  of  adultery  with  a  certain  person  on  a  certain 
day,  the  court  may  allow  the  libel  to  be  amended,  changing 
the  allegation  to  another  person  on  another  day.^°  In  bringing 
a  libel  for  divorce  on  the  ground  of  adultery,  it  is  always  better, 
after  naming  the  particeps  criminis,  to  insert  "or  with  some 
other  person  or  persons  to  your  libellant  unknown."  ^^ 

§  91.    Effect  of  divorce  for  adultery  on  legitimacy  of  children. 

In  order  to  prove  the  issue  of  a  married  woman  illegitimate, 
there  must  be  proof  of  non-access  of  the  husband  beyond  a 
reasonable  doubt.'^^ 

§  92.     Non-access. 

The  non-access  of  the  husband  must  be  shown  to  be  of  such 
duration  that  the  husband  could  not  have  been  the  father  of 
the  child,  or,  in  other  words,  it  must  be  shown  that  the  hus- 
band could  not  have  had  sexual  intercourse  with  the  wife 
during  the  period  within  which,  in  the  usual  course  of  nature, 
it  must  have  been  begotten.'^    As  the  law  presumes  in  favor 

89  Church  V.  Church,  3  Mass.  157;  Choate  v.  Choate,  3  Mass.  391;  Wood 
V.  Wood,  2  Paige  (N.  Y.),  108;  Germond  v.  Germond,  6  Johns.  Ch.  (N.  Y.) 
347;  Sanders  v.  Sanders,  25  Vt.  713. 

70  Tourtelot  v.  Tourtelot,  4  Mass.  506. 

71  See  Form  No.  9,  p.  353. 

72  Hemmenway  v.  Towner,  83  Mass.  209;  Phillips  v.  Allen,  84  Mass.  453; 
Sullivan  v.  Kelley,  85  Mass.  148;  Egbert  v.  Greenwait,  44  Mich.  245,  6 
N.  W.  645;  Van  Aemam  v.  Van  Aernam,  1  Barb.  Ch.  (N.  Y.)  375. 

73  Phillips  V.  Allen,  84  Mass.  453. 

[52  1 


CHAP.  VII.]  ADULTERY.  [§  93. 

of  legitimacy  and  that  the  husband  had  access  to  the  wife, 
this  presumption  must  be  clearly  overcome  by  evidence  that 
he  could  not  have  possibly  had  intercourse  with  her,  and  no 
admissions  or  statements  of  either  that  while  living  together 
they  did  not,  in  fact,  have  intercourse  will  be  received  to  alter 
the  presumption.^^ 

§  93.     Specifications  of  adultery. 

In  bringing  a  libel  or  petition  for  divorce  on  the  ground  of 
adultery,  the  wording  of  the  statute  should  always  be  followed 
and  the  name  of  the  particeps  criminis,  if  known,  alleged  ;^^ 
also  the  time  and  place  of  the  alleged  crime ;  and  if  the  crime 
is  alleged  to  have  been  committed  with  a  party  unknown  or 
at  a  place  unknown,  the  libellant  will  be  obliged  to  prove  such 
to  be  the  fact.  A  libel  for  divorce  must  be  signed  by  the 
libellant.'^^ 

§  94.     Record  of  conviction. 

The  record  of  conviction  of  respondent  in  a  criminal  pro- 
ceeding is  competent  evidence  and  is  sufficient  proof  of  mar- 
riage, also  of  adultery .'^^ 

">*  Hemmenway  v.  Towner,  83  Mass.  209;  Clapp  v.  Clapp,  97  Mass.  531. 
75  Church  V.  Church,  3  Mass.  157. 

78Willard  v.  Willard,  4  Mass.  506;  Winslow  v.  Winslow,  7  Mass.  96; 
Gould  V.  Gould,  42  Mass.  382. 

77  Anderson  v.  Anderson,  4  Me.  100;  Randall  v.  Randall,  4  Me,  326. 


[53] 


§96.] 


THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  VIII. 


CHAPTER  VIII. 


BIGAMY. 


§     95.  General  rule.  §   100.  Legitimacy  of  children. 

96.  Prior    marriage    must    have        101.  Remarriage  before  decree  is 

been  valid.  made  absolute. 

97.  Unheard  of  for  years.  102.  Evidence  of  bigamy. 

98.  Defence    of    unheard    of   ab-        103.  Proof  of  marriage. 

sence  for  statutory  period. 

99.  Meaning    of    the    term    "co- 

habitation." 

§  95.     General  rule. 

Under  no  circumstances  is  a  second  marriage  valid,  where 
the  first  has  not  been  dissolved  by  death  or  by  a  valid  divorce, 
and  the  dissolution  taken  place  before  the  celebration  of  the 
second.  Bigamy  or  polygamy  is  a  statutory  and  not  a  common- 
law  crime.  It  is  committed  where  one,  being  legally  married, 
marries  another  person  during  the  life  of  his  or  her  wife  or 
husband.^  Stephen  defines  the  word  "marries"  as  meaning 
going  through  a  form  of  marriage  which  the  law  of  the  place 
where  such  form  is  used  recognizes  as  binding,  whether  the 
parties  are,  by  that  law*  competent  to  contract  marriage  or 
not,  and  although  by  their  fraud  the  form  employed  may, 
apart  from  the  bigamy,  have  been  insufficient  to  constitute  a 
binding  marriage.^ 

§  96.     Prior  marriage  must  have  been  valid. 

If  the  prior  marriage  was  invalid,  no  indictment  for  bigamy 
or  polygamy  can  be  sustained.^     Bigamy  or  polygamy  is  not 

1  Clark  Criminal  Law  (2d  ed.),  §  116. 

2  Stephen  Dig.  Criminal  Law,  §  257. 

3  Beggs  V.  State,  55  Ala.  108;  Cooley  v.  State,  55  Ala.  162;  People  v. 
Beevers,  99  Cal.  286,  33  Pac.  844;  Davis  v.  Com.,  13  Bush.  (Ky.)  318; 
Hull  V.  State,  7  Tex.  App.  593. 

[54] 


CH.\P.  VIII.]  BIGAMY.  [§  97. 

committed  by  one  of  the  parties,  who  marries  after  a  decree 
of  divorce,  or  when  the  prior  marriage  has  been  judicially 
declared  void.^  But  divorce  as  a  defence  to  a  prosecution  for 
bigamy  must  have  been  obtained  before  the  second  marriage 
was  contracted.^  And  if  the  decree  of  divorce  was  granted 
by  a  court  which  had  no  jurisdiction,  or  the  decree  was  obtained 
by  fraud  it  will  be  no  defence  to  a  criminal  prosecution  for 
bigamy  or  polygamy.^ 

§  97.     Unheard  of  for  years. 

Most  states  have  passed  statutes  to  the  effect  that  if  a  hus- 
band or  wife  absent  himself  or  herself  for  a  period  of  years,  and 
is  unheard  of  during  that  time,  and  the  other  party  marry, 
not  knowing  him  or  her  to  be  living  or  dead  at  the  time,  such 
party  shall  not  be  criminally  liable  for  bigamy.  And  in  all 
places  over  which  the  United  States  has  exclusive  jurisdiction 
the  length  of  time  is  five  years.' 

§  98.     Defence  of  unheard  of  absence  for  statutory  period. 

If  the  defendant  sets  up  the  defence  of  unheard  of  absence 
for  the  length  of  time  as,  by  statute,  would  relieve  the  accused 
party  of  a  criminal  offence,  the  burden  of  proof  is  on  the  state 
to  show  that  the  former  husband  or  wife  was  living  at  the  time 
of  the  marriage.* 

§  99.     Meaning  of  the  term  "cohabitation." 

The  word  "cohabitation"'  as  it  is  used  in  the  statute  means 
the  dwelling  or  living  together  of  a  man  and  wife.  It  does 
not  necessarily  mean  to  live  in  the  same  house,  for  this  word 

4  People  V.  Hovey,  5  Barb.  (X.  Y.)  117;  State  v.  Norman,  2  Dev.  L. 
(N.  C.)  222. 

5  Baker  v.  People,  2  Hill  (X.  Y.),  325. 

e  Thompson  v.  State,  28  Ala.  12;  People  v.  Baker,  76  X.  Y.  78,  32  Am. 
Rep.  274;  Van  Fossen  v.  State,  37  Ohio  St.  317,  41  Am.  Rep.  507. 

^  U.  S.  Rev.  Stat.  §  5352  (U.  S.  Comp.  Stat.  [1901],  p.  3633).  See  also 
codes  and  statutes  of  the  several  states. 

8  Hull  V.  State,  7  Tex.  App.  593;  Gorman  v.  State,  23  Tex.  646. 

[55] 


§  102.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP,  VIII. 

is  not  used  in  the  definition.  The  man  and  woman  may  dwell 
or  live  together  in  an  open  field,  or  in  a  railroad  train,  or  in  the 
same  house.  They  are  to  be  conveniently  situated  as  to  each 
other,  and  to  act  in  regard  to  each  other  in  such  a  manner  as 
to  lead  the  world  to  believe  that  the  bigamous  relationship 
exists  between  them.  In  these  polygamic  relations  there  never 
is,  and  cannot  be,  that  intimate  association  and  habitual  at- 
tention given  by  the  man  to  the  various  women,  as  exists 
between  a  husband  and  his  wife  in  the  monogamic  state. 
Consequently,  in  the  very  nature  of  things,  the  proof  of  co- 
habitation cannot  be  made  as  clear  as  in  the  case  of  a  mono- 
gamic marriage,  simply  because  the  facts  of  which  proof  is  to 
be  made  do  not  as  abundantly  exist.^ 

§  100.     Legitimacy  of  children. 

A  decree  for  divorce  does  not  affect  the  legitimacy  of  chil- 
dren.i" 

§  101.     Remarriage  before  decree  is  made  absolute. 

Marriage  and  cohabitation  before  a  decree  is  granted  is 
adultery,  although  entered  into  in  good  faith  and  relying  on 
statements  of  counsel  that  a  decree  had  been  entered  granting 
a  divorce. ^^ 

§  102.     Evidence  of  bigamy. 

On  the  trial  of  an  indictment  for  polygamy,  it  appeared  that 
the  defendant,  a  Protestant,  had  been  married  in  Ireland  to 
a  Roman  Catholic,  by  a  Roman  Catholic  priest;  that  he  had 
cohabited  with  the  woman  there  as  his  wife ;  and  that  he  had 
afterwards,  while  his  wife  was  living,  been  married  to  another 
woman  in  the  state  where  the  indictment  was  brought.  It, 
was  held,  that  ''the  law  of  Ireland,  being  a  foreign  law,  is  a 

»  United  States  v.  Snow,  4  Utah,  295,  9  Pac.  686. 
10  Glass  V.  Glass,  114  Mass.  563. 

"  Gordon  v.  Gordon,  141  111.  160,  30  N.  E.  446,  33  Am.  St.  Rep.  294,  21 
L.  R.  A.  387.     See  also  21  L.  R.  A.  97. 

[56] 


CHAP.  VIII.]  BIGAMY.  [§    103. 

matter  of  fact  of  which  our  courts  have  no  judicial  knowledge 
without  proof.  A  marriage  solemnized  by  a  priest,  and  under 
which  the  parties  have  cohabited  as  husband  and  wife,  is 
prima  facie  a  valid  marriage  everywhere."  ^^ 

§  103.     Proof  of  marriage. 

The  marriage  may  be  proved  by  witnesses  who  were  present, 
by  the  magistrate  or  clergyman  who  officiated,  ^^  or  by  ad- 
missions of  the  defendant.  ^"^  And  in  states  where  the  law  re- 
quires that  records  of  marriages  shall  be  kept,  a  record  prop- 
erly authenticated  is  competent  to  prove  the  marriage.^^  Even 
circumstantial  evidence  has  been  held  good.*® 

12  Com.  V.  Kemiey,  120  Mass.  387. 

13  Dale  V.  State,  88  Ga.  552;  People  v.  Perriman,  72  Mich.  184,  40  N.  W. 
425;  State  v.  Clark,  54  X.  H.  456;  State  v.  Abbey,  29  Vt.  60,  67  Am.  Dec.  754. 

"Williams  v.  State,  54  Ala.  131,  25  Am.  Rep.  665;  State  v.  Libby,  44 
Me.  469,  69  Am.  Dec.  115;  Crane  v.  State,  94  Tenn.  86. 

15  Tucker  v.  People,  117  111.  88;  Faustre  v.  Com.,  92  Ky.  34. 

"Com.  V.  Hayden,  163  Mass.  453;  People  v.  Crawford,  62  Hun  (N.  Y.), 
160. 


[57] 


§  104.]  THE    LAW   OF   MARRIAGE    AND    DIVORCE.    [CHAP.  IX. 


CHAPTER  IX. 


CRUELTY. 


104.  General  rule  as  to  degree  of 

cruelty. 

105.  Actual  personal  violence. 

106.  Reasonable   apprehension    of 

violence. 

107.  Treatment  endangering 

health. 

108.  Treatment   endangering   life. 

109.  Communicating    disease. 


110.  Denial  of  sexual  intercourse. 

111.  Abuse  of  sexual  intercourse. 

112.  Mental  suffering. 

113.  False  accusations  and  threats. 

114.  Masturbation  not  cruelty. 

115.  Drunkenness   no   defence   to 

cruelty. 

116.  Mutual  cruelty  or  family  jars. 


§  104.     General  rule  as  to  degree  of  cruelty. 

Cruelty  as  a  cause  for  divorce  has  been  the  subject  of  con- 
siderable discussion  and  many  decisions,  from  which  it  is 
difficult  to  extract  a  clear  and  comprehensive  definition.  As 
a  general  rule,  however,  in  order  to  make  cruelty  a  ground  for 
divorce,  it  must  be  such  conduct  toward  the  plaintiff  by  the 
defendant  as  will  cause  him  or  her  injury  by  actual  personal 
violence,  or  the  reasonable  apprehension  of  it,  or  such  course 
of  treatment  as  endangers  his  or  her  life  or  health,  and  renders 
cohabitation  unsafe.^  Cruelty  is  a  ground  for  absolute  di- 
vorce in  every  state  where  divorces  are  granted  except  New 
York.  In  Maryland  and  Virginia  it  is  left  to  the  discretion 
of  the  court. 

The  degree  of  cruelty  to  justify  a  divorce  depends  upon  the 
wording  of  the  local  statute.     In  some  states  the  cruelty  must 

1  Morris  v.  Morris,  14  Cal.  76,  73  Am.  Dec.  615  and  note;  Odom  v.Odom, 
36  Ga.  286;  Cole  v.  Cole,  23  Iowa,  433;  Hawkins  v.  Hawkins,  65  Md.  104; 
Ford  V.  Ford,  104  Mass.  198;  Peabody  v.  Peabody,  104  Mass.  195;  Cowles  v. 
Cowles,  112  Mass.  298;  Bailey  v.  Bailey,  97  Mass.  373;  Jones  v.  Jones,  66 
Pa.  St.  494. 

[58] 


CHAP.   IX.]  CRUELTT.  [§   105. 

consist  of  actual  personal  violence  of  such  severity  as  to  en- 
danger life.  In  others,  no  physical  violence  is  necessary. 
Accusing  the  wife  of  unchastity,  or  profane,  insulting,  and 
abusive  language,  if  habitually  used,  is  held  sufficient.^ 

§  105.     Actual  personal  violence. 

The  most  flagrant  cause  in  these  cases  is  actual  personal 
violence,  and  in  this  connection  it  is  held  that  proof  of  a  single 
act  of  violence  does  not  constitute  sufficient  proof  of  cruelty, 
unless  there  is  apprehension  by  the  plaintiff  of  a  repetition  of 
such  acts.^  Evidence  of  slight  acts  of  violence  such  as  would 
cause  no  fear  or  apprehension  is  not  sufficient.'*  It  is  not  nec- 
essary, though,  that  the  acts  should  be  repeated  for  any 
number  of  times  or  should  continue  for  any  length  of  time,  if 
they  cause  the  plaintiff  to  have  fear  for  personal  safety  and  to 
anticipate  bodily  harm.^ 

§  106.     Reasonable  apprehension  of  violence. 

Mere  displays  of  temper  or  passion,  however  irritating,  are 
not  grounds  for  divorce,  nor  even  threats  of  bodily  harm, 
unless  there  is  an  apprehension  on  the  part  of  the  plaintiff  of 
bodily  harm.^  This  must  be  a  reasonable  apprehension  and 
not  one  caused  by  extreme  sensitiveness  or  nervousness,  al- 
though the  modern  tendency  is  to  take  into  consideration  the 
training  and  environment  of  the  complainant  in  determining 

2Sylvis  V.  Sylvis,  11  Colo.  319;  Carpenter  v.  Carpenter,  30  Kan.  712, 
46  Am.  Rep.  108;  Holyoke  v.  Holyoke,  78  Me.  404;  Walsh  v.  Walsh,  61  Mich. 
554,  28  N.  W.  718;  Palmer  v.  Palmer,  45  Mich.  150,  7  X.  W.  760,  40  Am. 
Rep.  461;  Kelly  v.  KeUy,  18  Xev.  49,  51  Am.  Rep.  732;  Crow.  v.  Crow,  29 
Ore.  392,  45  Pac.  761;  Smith  v.  Smith,  8  Ore.  100. 

3  Ford  V.  Ford,  104  Mass.  198;  Reed  v.  Reed,  4  Xev.  395. 

*  Henderson  v.  Henderson,  88  111.  248;  Coursey  v.  Coursey,  60  111.  186; 
Hitchins  v.  Hitchins,  41  111.  App.  82;  Lauber  v.  Mart,  15  La.  Ann.  593; 
Armant  v.  Her  Husband,  4  La.  Ann.  137;  Cook  v.  Cook,  11  X.  J.  Eq.  195. 

5  Lauber  v.  Mart,  15  La.  Ann.  593. 

6  Fritz  V.  Fritz,  138  111.  436,  32  Am.  St.  Rep.  156;  Peavey  v.  Peavey,76 
Iowa,  443;  Whaley  v.  Whaley,  68  Iowa,  647;  Hewitt  v.  Hewitt,  37  Atl.  1011. 

[59] 


§  108.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  IX. 

what  is  a  reasonable  apprehension.'^  And  this  apprehension 
may  be  created  by  the  threatening  statements  of  the  defend- 
ant.* 

§  107.     Treatment  endangering  health. 

As  to  what  constitutes  treatment  endangering  health,  there 
is  a  broader,  modern  doctrine  being  established.  Aside  from 
the  acts  of  personal  violence  and  bodily  injury,  there  is  a 
tendency  to  hold  that  there  may  be  such  conduct  on  the  part 
of  the  defendant,  which,  while  it  does  not  come  under  those 
heads,  from  its  general  effect  on  the  mental  and  nervous 
temperament  of  the  victim,  produces  a  consequent  injury  to 
the  health  and  tends  to  shorten  life,  and  is  therefore  considered 
a  species  of  cruelty.  The  mental  and  physical  condition  of 
the  complainant  will  be  considered,  and  conduct  which  might 
not  be  cruelty  to  a  well  man  may  readily  be  cruelty  to  a  sick 
woman.^  In  determining  these  cases  there  is  also  a  tendency 
to  take  into  consideration  the  station  in  life,  habits,  training 
and  refinement  of  the  parties,  as  what  might  be  cruelty  to  a 
person  of  refinement  would  not  be  to  one  of  grosser  sensi- 
bilities.i'' 

§  108.     Treatment  endangering  life. 

Such  severe  and  violent  treatment  as  would  endanger  the 
life  of  the  complainant  is  clearly  ground  for  divorce  under  the 
statutes,  whatever  the  terms  used  therein  are.     Actual  at- 

7Smedlev  v.  Smedley,  30  Ala.  714;  Densmore  v.  Densmore,  6  Mackey 
(D.  C),  544;  Donald  v.  Donald,  21  Fla.  571;  Ford  v.  Ford,  104  Mass.  198. 

8  Bailey  v.  Bailey,  97  Mass.  373;  Cook  v.  Cook,  11  N.  J.  Eq.  195. 

8  Rice  V.  Rice,  6  Ind.  100. 

10  David  v.  David,  27  Ala.  222;  Sylvis  v.  Sylvis,  11  Colo.  319,  17  Pac.  912; 
Fizette  v.  Fizette,  146  111.  328,  34  N.  E.  799;  Wheeler  v.  Wheeler,  53  Iowa, 
511,  5  N.  W.  689,  36  Am.  Rep.  240;  Cole  v.  Cole,  23  Iowa,  433;  Carruthers 
V.  Carruthers,  13  Iowa,  266;  Holyoke  v.  Holyoke,  78  Me.  404,  6  Atl.  827 
Bailey  v.  Bailey,  97  Mass.  373;  Kline  v.  Kline,  50  Mich.  438,  15  N.  W.  541 
McClung  V.  McClung,  40  Mich.  493;  Clinton  v.  Clinton,  60  Mo.  App.  296 
Cheatham  v.  Cheatham,  10  Mo.  296;  Lutz  v.  Lutz,  9  N.  Y.  Supp.  858 
Morehouse  v.  Morehouse,  70  Conn.  420,  39  Atl.  516. 

[60] 


CHAP.  IX.]  CRUELTY.  [§   109. 

tempts  to  take  the  life  of  complainant,  or  such  vicious  acts  as 
would  maim  or  cripple  the  victim  are  clearly  within  this  class. ^^ 
Under  various  statutes  and  in  connection  with  other  acts  and 
conduct,  the  following  have  been  held  to  be  acts  endangering 
life,  or  causing  apprehension  that  life  was  in  danger:  striking 
with  weapons,  choking,  kicking,  hair-pulling,  soaking  with 
croton  oil,  drenching  with  water,  whipping,  spitting  in  the 
face,  and  even  harsh  language. ^^ 

§  109.     Communicating  disease. 

Under  the  theory  that  acts  which  tend  to  the  injury  of  the 
health  of  the  complainant  are  expressions  of  cruelty  or  cruel 
treatment,  the  communicating  of  a  disease,  whether  the  same 
be  venereal,  infectious,  or  "  any  loathsome  "  disease,  is  cruelty." 
It  must  appear  that  the  wife  contracted  the  disease  from  her 
husband,  as  it  is  not  enough  that  she  cohabited  with  him  and 
did  not  commit  adultery."  Where  the  defendant  had  con- 
tracted and  communicated  to  his  wife  a  form  of  venereal  itch, 
the  court  held  that  the  charge  of  wilful  communication  is 
proved,  and  is  an  act  of  cruelty. ^^ 

§  110.     Denial  of  sexual  intercourse. 

It  seems  that  a  denial  of  sexual  intercourse,  of  itself,  even 
when  persisted  in  for  a  long  space  of  time  will  not  be  considered 
ground  for  divorce,  unless  it  clearly  appears  to  result  in  an 

11  Rie  V.  Rie,  34  Ark.  37;  Wand  v.  Wand,  14  Cal.  512;  Knight  v.  Knight; 

31  Iowa,  451;  Peavey  v.  Peavey,  76  Iowa,  443,  41  N.  W.  67;  Dillon  v.  Dillon, 

32  La.  Ann.  643;  Jones  v.  Jones,  66  Pa.  St.  494;  Harvey  v.  Harvey,  7  Atl.  871. 

12  Moyler  v.  Moyler,  11  Ala.  620;  Sharp  v.  Sharp,  116  lU.  509,  6  N.  E.  15; 
Wessels  v.  Wessels,  28  111.  App.  253;  Mercer  v.  Mercer,  114  Ind.  5.58,  17 
N.  E.  182;  Schichtl  v.  Schichtl,  88  Iowa,  210,  55  X.  W.  309;  Wachholz  v. 
Wachholz,  75  Wis.  377, 44  N.  W.  506;  Harvey  v.  Harvey,  (N.  J.)  7  Atl.  871. 

"Morehouse  v.  Morehouse,  70  Conn.  427,  39  Atl.  516;  Holthoefer  v. 
Holthoefer,  47  Mich.  260,  11  X.  W.  150;  Canfield  v.  Canfield,  34  Mich.  519; 
Cook  V.  Cook,  32  X.  J.  Eq.  475;  Leach  v.  Leach,  (Me.)  8  Atl.  349. 

"Holthoefer  v.  Holthoefer,  47  Mich.  260,  11  X.  W.  150;  Cook  v.  Cook, 
32  X.  J.  Eq.  475. 

15  Chesnutt  v.  Chesnutt,  1  Spinks,  196. 

[61] 


§  112.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  IX. 

injury  to  the  health  of  the  complaining  party. ^^  But  in  some 
states  a  persistent  denial  of  sexual  intercourse  is  deemed  de- 
sertion, as  in  California.  In  most  states,  however,  it  is  not 
desertion.^^  Neither  will  a  denial  of  sexual  intercourse  justify 
the  aggrieved  party  in  leaving  the  other. ^* 

§  111.     Abuse  of  sexual  intercourse. 

It  is  a  fundamental  principle  governing  the  marriage  rela- 
tion, that  one  of  the  reasons  for  the  existence  of  marriage  is 
the  necessity  for  the  proper  regulation  of  the  natural,  sexual 
desires,  and  any  conduct  on  the  part  of  a  husband  or  wife, 
which  shall  interfere  with,  or  prevent  such  proper  sexual  rela- 
tion is  reprehensible,  and,  generally,  a  ground  for  divorce, 
either  alone,  or  as  forming  the  basis  for  a  charge  of  cruelty, 
or  cruel  treatment  such  as  would  endanger  health — a  cause 
for  divorce  becoming  of  wider  application  and  construction 
of  the  law  under  modern  decisions.  This  abuse  of  the  sexual 
relation  may  be  an  excessive  and  abusive  indulgence  by  the 
husband,  where  the  intercourse  is  of  such  a  nature  or  quantity 
as  to  injure  the  health  of  the  wife.^''  But  where  there  is  no 
injury  to  health  or  reason  for  fear  of  such  injury,  such  excesses 
will  not  constitute  cause  for  divorce. -° 

§112.     Mental  suffering. 

The  degree  of  mental  suffering  required  to  be  shown  in  these 
cases  produced  by  cruelty  varies  with  the  decisions  on  the 

"Steele  v.  Steele,  1  MacArthur  (D.  C),  505;  Stewart  v.  Stewart,  78  Me. 
548,  7  Atl.  473,  57  Am.  Rep.  822;  Cowles  v.  Cowles,  112  Mass.  298;  Burton 
V.  Burton,  52  N.  J.  Eq.  215,  27  Atl.  825;  Reid  v.  Reid,  21  N.  J.  Eq.  331. 

"Southwick  V.  Southwick,  97  Mass.  327,  93  Am.  Dec.  95;  Watson  v. 
Watson,  52  N.  J.  Eq.  349,  28  Atl.  467. 

18  Reid  V.  Reid,  21  N.  J.  Eq.  331. 

19  Mayhew  v.  Mayhew,  61  Conn.  233,  23  Atl.  966,  29  Am.  St.  Rep.  195; 
Grant  v.  Grant,  53  Minn.  181,  54  N.  W.  1059;  Melvin  v.  Melvin,  .58  N.  H. 
569,  42  Am.  Rep.  605;  English  v.  English,  27  N.  J.  Eq.  71. 

20  Mayhew  v.  Mayhew,  61  Conn.  234,  23  Atl.  966,  29  Am.  St.  Rep.  195; 
Shaw  V.  Shaw,  17  Conn.  189;  Youngs  v.  Youngs,  33  111..  App.  223. 

[62  J 


CHAP.   IX.]  CRUELTY.  [§   112. 

different  forms  of  the  statutes.  It  is  generally  well  settled, 
though,  that  such  mental  suffering  as  wQl  impair  the  health 
as  a  matter  of  fact,  if  shown  by  the  evidence  in  the  particular 
case  as  due  to  the  cruelty  of  the  defendant,  will  be  sufficient. ^^ 
Mental  suffering  may  be,  and  ofttimes  is,  far  greater  than 
physical,  and  the  tendency  of  the  courts  at  the  present  time 
is  to  regard  imcalled  for  torture,  nagging,  and  false  accusa- 
tions, where  wantonly  inflicted,  if  sufficient  in  degree  to  injure 
health  or  endanger  reason,  as  cruelty  and  a  ground  for  divorce. 
In  California,  Utah  and  North  Dakota  it  is  a  direct  cause  for 
divorce,  and  in  many  of  the  states  conduct  making  life  un- 
bearable and  causing  great  mental  suffering  is  sufficient  in 
itself.^'  But  in  Connecticut  the  courts  hold  that  language 
calculated  to  wound  the  feelings  is  insufficient,  the  degree  of 
cruelty  required  must  be  intolerable  in  fact.^^ 

Husband  permitting  lewd  conduct  of  daughters  in  the  home 
is  cruelty  to  the  wifc^"*  So  the  husband's  attempt  to  commit 
rape  and  the  public  disgrace  therefrom  will  justify  the  wife  in 
divorce,  where  the  wife's  health  is  injured  thereby. ^^ 

Extreme  cruelty  is  the  infliction  of  grevious  bodUy  injury 
or  grevious  mental  suffering  by  one  party  to  the  marriage 
upon  the  other.  The  tendency  of  modern  decisions,  reflecting 
the  advanced  civilization  of  the  present  age,  is  to  view  mar- 
riage from  a  different  standpoint  than  as  a  mere  physical 
relation.  It  is  now  more  wisely  regarded  as  a  union  affecting 
the  mental  and  spiritual  life  of  the  parties  to  it,  a  relation 
designed  to  bring  them  the  comfort  and  felicities  of  home  life, 
and  between  whom,  in  order  to  fulfil  such  design,  there  should 

21  Carpenter  v.  Carpenter,  30  Kan.  712,  2  Pac.  122,  46  Am.  Rep.  108, 
Hart  V.  Hart,  68  X.  H.  478,  39  Atl.  430. 

22  Moyler  V.  Moyler,  11  Ala.  620;  Barnes  v.  Barnes,  95  Cal.  171,  30  Pac.  298, 
16  L.  R.  A.  660  and  note  ;  Graft  v.  Graft,  76  Ind.  136;  Palmer  v.  Palmer, 
45  Mich.  150,  7  N.  W.  760,  40  Am.  Rep.  461. 

23  Shaw  V.  Shaw,  17  Conn.  189. 

24  Davis  V.  Davis,  86  Ky.  32,  4  S.  W.  822. 

25  Fleming  v.  Fleming,  95  Cal.  430,  30  Pac.  566,  29  Am.  St.  Rep.  124. 

[63] 


§  114.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.    [cHAP.  IX. 

exist  mutual  sentiments  of  love  and  respect.  "It  was  formerly 
thought  that  to  constitute  extreme  cruelty,  such  as  would 
authorize  the  granting  of  a  divorce,  physical  violence  is  nec- 
essary; but  the  modern  and  better  considered  cases  have  re- 
pudiated this  doctrine  as  taking  too  low  and  sensual  view  of  the 
marriage  relation,  and  it  is  now  very  generally  held  that  any 
unjustifiable  conduct  on  the  part  of  either  the  husband  or  wife, 
which  so  grievously  wounds  the  feelings  of  the  other,  or  so 
utterly  destroys  the  peace  of  mind  of  the  other  as  to  seriously 
impair  the  health,  or  such  as  utterly  destroys  the  legitimate 
ends  and  objects  of  matrimony  constitute  extreme  cruelty."  ^^ 

§  113.    False  accusations  and  threats. 

The  accusation  of  a  crime  or  of  unchastity,  or  of  any  other 
gross  and  false  charge,  made  with  accompanying  threats  of 
violence,  is  decreed  to  be  such  cruelty  as  to  cause  an  appre- 
hension of  fear  by  the  complainant.  The  accusation  need  not 
be  made  to,  or  in  the  presence  of,  a  third  person,  but  may  be 
part  of  the  acts  of  cruelty  alleged,  and  may  also  be  the  cause 
of  such  mental  suffering,  from  their  nature  and  scope,  as  to  be 
an  injury  to  health.^^  So  too,  threats  of  bodily  violence, 
while  not  acts  of  violence  in  themselves,  are  held  to  be  acts  of 
cruelty,  when  they  cause  apprehension  of  bodily  harm  taken 
in  connection  with  other  conduct  of  the  defendant.^' 

§  114.     Masturbation  not  cruelty. 

The  practice  of  masturbation  by  a  husband  in  the  presence 

26  Carpenter  v.  Carpenter,  30  Kan.  712,  2  Pac.  122,  46  Am.  Rep.  108. 
See  also  Barnes  v.  Barnes,  95  Cal.  171,  30  Pac.  298,  16  L.  R.  A.  660,  and 
note. 

27  Ward  V.  Ward,  103  111.  477;  Jones  v.  Jones,  62  N.  H.  463;  Kennedy  v. 
Kennedy,  73  N.  Y.  369;  Waltermire  v.  Waltermire,  110  N.  Y.  183,  17  N.  E. 
739. 

28  Wheeler  v.  Wheeler,  53  Iowa,  511,  5  N.  W.  689,  36  Am.  Rep.  240; 
Palmer  v.  Palmer,  45  Mich.  150,  7  N.  W.  760,  40  Am.  Rep.  461  and  note; 
Gardner  v.  Gardner,  23  Nev.  207,  45  Pac.  139. 

[64] 


CHAP.  IX.]  CRUELTY.  [§   115. 

of  his  wife,  but  without  compelUng  her  to  remain  present, 
which  injures  her  health  by  its  effect  upon  her  feelings,  is  not 
"cruel  and  abusive  treatment"  making  such  treatment  a 
ground  for  divorce. ^^ 

§  115.     Drunkenness  no  defence  to  cruelty. 

It  is  not  a  sufficient  defence  that  the  acts  of  cruelty  com- 
plained of  were  inflicted  by  the  defendant  when  he  was  in- 
toxicated and  that  he  was  kind  when  sober. ^°  But  violence 
inflicted  by  the  husband  from  the  use  of  morphine  has  been 
held  not  to  be  cruelty.'^ 

§  116.     Mutual  cruelty  or  family  jars. 

Suits  are  often  brought  for  divorce  on  the  ground  of  cruelty, 
where  the  evidence  shows  that  the  acts  of  violence,  as  well  as 
of  cruelty,  were  committed  by  both  parties,  and  it  is  difficult 
to  formulate  any  rule  from  the  decisions.  Sometimes  it  seems 
to  be  a  question  of  comparative  cruelty,  or  one  as  to  who 
committed  the  more  violence,  or  the  suits  are  dismissed  as  not 
proper  cases  for  divorce.  Thus  it  has  been  held  that  where  the 
husband  suffered  as  much  as  the  wife  in  a  violent,  mutual 
quarrel,  it  would  not  be  considered  cruelty  such  as  would  sup- 
port a  complaint  for  divorce. ^^  The  courts  have  also  decided 
that  a  divorce  court  is  not  the  proper  place  for  the  reformation 
of  domestic  brawlers  and  the  regulation  of  family  fights.  As 
men  at  best  are  but  human,  a  nagging,  abusive  and  exasperat- 
ing wife  may  induce  him  to  lose  control  of  his  temper,  ''for 
husbands  are  men  not  angels."  ^^  Neither  can  a  repeated 
urging  of  the  husband  by  the  wife  to  insure  his  life  for  her 

29  W.  V.  W.,  141  Mass.  495,  6  X.  E.  541,  55  Am.  Rep.  491. 

30  Hughes  V.  Hughes,  19  Ala.  307;  Benyman  v.  Berryman,  59  Mich.  605, 
26  N.  W.  789;  Powers  v.  Powers,  20  Neb.  529,  31  N.  W.  1 ;  Wachholz  v.  Wach- 
holz,  75  Wis.  377,  44  N.  W.  506. 

31  Youngs  V.  Youngs,  130  111.  230,  22  N.  E.  806,  17  Am.  St.  Rep.  313, 
6  L.  R.  A.  548  and  note. 

32  Soper  V.  Soper,  29  Mich.  305. 

33  Durand  v.  Her  Husband,  4  Martin  (La.),  174. 

5  [65] 


§  116.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  IX. 

benefit  be  considered  as  an  act  of  cruelty,  and  it  is  not  a  ground 
for  divorce. ^^  Laziness  and  wilful  neglect  of  household  duties 
with  obstinate  silence  by  the  wife  does  not  constitute  cruel  and 
barbarous  treatment  under  the  Pennsylvania  statutes.  Mere 
family  difficulties  existing  between  a  husband  and  wife,  are  not 
a  cause  for  divorce,  where  they  show  no  grave  nor  insuperable 
cause  which  renders  cohabitation  unbearable. ^^  Occasional 
disrespectful  treatment  of  a  husband  in  the  presence  of  third 
persons  and  refusing  to  sleep  with  him  for  a  few  days  is  not 
ground  for  a  divorce. ^^ 

34  Saterlee  v.  Saterlee,  28  Colo.  290,  64  Pac.  189. 

35  Scott  V.  Scott,  27  La.  Ann.  594. 
38  Scott  V.  Scott,  61  Tex.  119. 


[66] 


CHAP.  X.] 


CONVICTION   OF   CRIME. 


[§  117. 


CHAPTER  X. 


CONVICTION    OF    CRIME. 


117.  General  rule. 

118.  Imprisonment       in      foreign 

state. 

119.  Necessity  of  conviction. 


§  120.  Effect   of  pardon  after  sen- 
tence. 
121.  Marriage  of  a  criminal  pend- 
ing appeal. 


§  117.     General  rule. 

The  conviction  of  a  crime  (generally  a  felony),  followed  by 
sentence  of  imprisonment  in  the  penitentiary  for  the  term  of 
years  prescribed  by  statute,  is  a  sufficient  ground  for  an  abso- 
lute divorce  in  most  states.^  But  such  imprisonment  is  not 
considered  desertion.'  But  in  a  Kentucky  case,  where  the 
husband  was  sentenced  to  life  imprisonment,  the  wife  was 
granted  a  divorce  on  the  ground  of  abandonment.^ 

§  118.     Imprisonment  in  foreign  state. 

A  sentence  to  imprisonment  in  a  state  prison  in  another 
state  is  not  a  cause  for  divorce  in  Massachusetts,  within  the 
meaning  of  Mass.  Pub.  Stat.,  c.  146,  §  2,  permitting  a 
divorce,  "when  either  party  has  been  sentenced  to  confine- 
ment at  hard  labor  for  life  or  for  five  years  or  more  in  the  state 
prison,  or  in  a  jail  or  house  of  correction."  ^ 


§119.     Necessity  of  conviction. 

It  is  not  enough  that  the  defendant  has  committed  a  crime. 

iSee  statutes  of  various  states,  infra,  p.  233. 
aPorritt  v.  Porritt,  18  Mich.  420;  Wolf  v.  Wolf,  38  N.  J.  Eq.  128. 
8  Davis  V.  Davis,  102  Ky.  440,  43  S.  W.  168. 

*  Leonard  v.  Leonard,  151  Mass.  151,  23  X.  E.  732,  21  Am.  St.  Rep.  437. 
See  also  Martin  v.  Martin,  47  N.  H.  52;  Klutts  v.  Klutts,  5  Sneed  TTenn.),  423. 

[67] 


§  121.]  THE    LAW    OF    MARRIAGE    AND   DIVORCE.       [CHAP.  X. 

Conviction  and  sentence  are  necessary.^  But  in  a  New  Hamp- 
shire case  the  court  granted  a  divorce  after  conviction  pending 
an  appeal.  [It  would  seem,  in  all  fairness  to  the  defendant, 
that  no  decree  of  divorce  should  be  granted  until  the  convic- 
tion and  sentence  became  final.]  ^ 

§  120.     Effect  of  pardon  after  sentence. 

No  pardon  granted  to  the  defendant  after  decree  of  divorce 
will  restore  such  party  to  his  or  her  conjugal  rights.^ 

§  121.     Marriage  of  a  criminal  pending- appeal. 

Under  the  Vermont  statute  a  divorce  may  be  granted,  when 
either  party  is  sentenced  to  confinement  at  hard  labor  in  the 
state's  prison  for  life,  or  for  three  years  or  more,  and  is  actually 
confined  at  the  time;  but  a  divorce  for  conviction  of  crime 
under  the  statute  will  not  be  granted  a  wife  who  has  married 
a  criminal  pending  an  appeal  from  the  conviction,* 

5  Thomas  v.  Thomas,  51  111.  162;  Rivers  v.  Rivers,  60  Iowa,  378,  14  N.  W. 
774;  Oliver  v.  Oliver,  169  Mass.  592,  48  N.  E.  843. 

6  Cone  V.  Cone,  58  N.  H.  152. 

7  See  Handy  v.  Handy,  124  Mass.  394;  Young  v.  Young,  61  Tex.  191. 

8  Caswell  V.  CasweU,  64  Vt.  557,  24  Atl.  988. 


[68] 


CHAP.  XI.]  HABITUAL   DRUNKENNESS.  [§  122. 


CHAPTER  XL 

HABITUAL   DRUNKENNESS. 

§  122.  Use  of  alcoholic  liquors.  j  §  129.  Complainant    furnishing 

123.  Use  of  opium  or  other  drugs.  liquor. 

124.  Habitual     drunkenness     de- :      130.  Periodical    debauches. 

fined. 

125.  Degree    of   drunkenness. 

126.  Dipsomaniacs. 

127.  Court  records. 

128.  Necessity  of  conviction. 


131.  Occasional    intoxication. 

132.  Knowledge  of  drunkenness  at 
time  of  marriage. 

133.  Habitual    intemperance. 


§  122.     Use  of  alcoholic  liquors. 

Habitual  drunkenness  or  intemperance  caused  by  the  vol- 
untary and  excessive  use  of  alcoholic  liquors  is  a  ground  for 
divorce  in  nearly  all  states.^  A  divorce  will  not  be  granted, 
however,  on  the  ground  of  drunkenness  unless  it  is  shown  that 
the  drunkenness  is  habitual.^ 

§  123.     Use  of  opium  or  other  drugs. 

Habitual  drunkenness  caused  by  the  voluntary  and  ex- 
cessive use  of  opium,  chloral,  chloroform,  cocaine,  or  similar 
drug  is  a  ground  for  divorce  in  many  states.  In  Illinois, 
however,  it  is  held  that  the  excessive  ase  of  morphine  by 
hypodermic  injection  is  not  drunkenness  within  the  meaning 
of  the  statute  as  a  ground  for  divorce.' 

§  124.     Habitual  drunkenness  defined. 

Habitual  drunkermess,  to  constitute  a  ground  for  divorce, 

1  See  statute  of  various  states,  iyifra,  p.  233.  See  also  Brown  v.  Brown, 
38  Ark.  324;  McGill  v.  McGill,  19  Fla.  341;  Dawson  v.  Dawson,  23  Mo. 
App.  169;  Batchelder  v.  Batchelder,  14  N.  H.  380. 

2Myrick  V.  Myrick,  67  Ga.  771. 

3  Youngs  V.  Youngs,  130  lU.  230,  22  N.  E.  806,  17  Am.  St.  Rep.  313, 
6  L.  R.  A.  548. 

[69] 


§127.]  THE   LAW  OF   MARRIAGE    AND    DIVORCE.      [CHAP.  XI. 

must  be  gross  and  confirmed  and  continue  long  enough  to 
render  living  together  intolerable.  What  amounts  to  habitual 
drunkenness  is  a  question  of  law  fixed  by  statute,  and  in  draw- 
ing a  libel  for  divorce  on  this  ground  particular  attention 
should  be  paid  to  the  wording  of  the  statute.^ 

§  125.     Degree  of  drunkenness. 

Habitual  intemperance  is  such  degree  of  indulgence  in  the 
use  of  intoxicating  liquors  as  disqualifies  a  person  a  greater 
portion  of  his  time  from  properly  attending  to  business,  or 
which  inflicts  great  anguish  upon  an  innocent  party.^  In 
Kentucky,  a  confirmed  habit  of  drunkenness  on  the  part  of 
the  husband,  continued  for  not  less  than  one  year,  accompanied 
with  wasting  his  estate,  and  no  suitable  provision  being  made 
for  wife  and  children,  is  a  ground  for  divorce.  The  courts 
hold  that,  in  the  absence  of  property,  the  words  "wasting  of 
his  estate"  apply  to  and  embrace  the  health,  time,  and  labor 
of  the  defendant,  as  they  are  essentially  his  estate  for  the 
purpose  of  supporting  himself  and  family.^ 

§  126.     Dipsomaniacs. 

A  person  who  has  become  fixed  in  the  habit  of  indulging 
in  liquor  and  gets  drunk  as  often  as  the  temptation  is  pre- 
sented, is  a  dipsomaniac  and  the  husband  or  wife  of  such 
person  is  entitled  to  a  divorce.'' 

§  127.     Court  records. 

Where  the  husband  has  been  declared  by  the  trial  court  to 
be  an  habitual  drunkard  a  divorce  will  be  decreed.* 

4  Halls  V.  Cartwright,  18  La.  Ann.  414;  Williams  v.  Goss,  43  La.  Ann.  868, 
9  So.  750;  DeLesdernier  v.  DeLesdernier,  45  La.  Ann.  1364,  14  So.  191; 
Blaney  v.  Blaney,  126  Mass.  205. 

5  Berryman  v.  Berryman,  59  Mich.  605,  26  N.  W.  789;  Gelding  v.  Golding, 
6  Mo.  App.  602. 

6  McKay  v.  McKay,  57  Ky.  8;  Shuck  v.  Shuck,  70  Ky.  306. 

7  Magahay  v.  Magahay,  35  Mich.  210. 

8  Johnson  ?;.  Johnson,  35  Leg.  Int.  (Pa.)  70. 

[70] 


CHAP.   XI.]  HABITUAL    DRUNKENNESS.  [§  128. 

§  128.     Necessity  of  conviction. 

In  order  to  decree  a  divorce  on  the  ground  of  drunkenness, 
it  is  not  necessary  that  the  defendant  shall  have  been  con- 
victed of  the  crime  of  drunkenness.^ 

§  129.     Complainant  furnishing  liquor. 

Where  it  is  shown  that  the  complaining  party  furnished  the 
defendant  with  liquor,  or  money  with  which  to  buy  liquor, 
that  he  might  keep  drunk  so  that  she  could  have  grounds  for 
a  divorce,  the  court  held  that  she  was  not  entitled  to  a  divorce 
for  she  had  consented  to  his  unlawful  acts.^° 


§  130.     Periodical  debauches. 

Evidence  that  the  libellee  for  a  period  of  twelve  or  fifteen 
years  had,  as  often  as  three  or  four  times  a  year,  yielded  to  an 
impulse  to  drink  to  excess;  that  on  such  occasions  he  became 
grossly  intoxicated,  continuing  in  that  condition  a  week  or 
ten  days  together;  that  at  such  times  he  went  or  was  sent  to 
an  asylum  for  inebriates;  that  when  the  desire  for  drink  came 
upon  him  he  could  not  resist;  that  a  single  glass  would  bring 
on  excessive  drinking,  and  a  renewal  of  excessive  intoxication; 
that  there  had  been  no  apparent  improvement  in  his  habits  in 
this  respect;  and  that  any  undue  excitement  would  make  him 
drink,  is  sufficient  to  justify  a  finding  that  he  had  contracted 
gross  and  confirmed  habits  of  intoxication,  and  entitled  the 
wife  to  a  divorce." 

§  131.     Occasional  intoxication. 

Occasional  intoxication  is  not  sufficient  groimd  for  a  di- 
vorce.    The  habit  must  be  habitual,  gross,  and  confirmed.^^ 

9  Brown  v.  Browa,  38  Ark.  324. 

10  Bean  v.  Bean,  11  Lane.  Bar  Rep.  (Pa.)  138. 

11  Blaney  v.  Blaney,  126  Mass.  205. 

12  McBee  v.  McBee,  22  Ore.  329,  29  Pac.  887,  29  Am.  St.  Rep.  613;  Gourlay 
V.  Gourlay,  16  R.  I.  705,  19  Atl.  142. 

[71] 


§  133.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  XI. 

Accordingly  the  occasional  intoxication  of  the  wife  is  not  a 
ground  for  divorce.  ^^ 

§  132.     Knowledge  of  drunkenness  at  time  of  marriage. 

If  the  wife  knew  of  the  husband's  drunkenness  at  the  time 
she  married  him  she  cannot  complain,  and  if  he  sets  it  up  as 
a  defence  it  is  good.^^  So,  too,  a  divorce  will  not  be  granted 
for  drunkenness,  where  it  appears  that  the  habits  of  the  de- 
fendant were  the  same  at  the  time  of  the  marriage  and  that 
the  complainant  was  aware  of  the  fact.^^ 

§  133.     Habitual  intemperance. 

Habitual  intemperance,  within  the  meaning  of  a  statute 
authorizing  a  divorce  for  such  cause,  is  not  shown  by  the  fact 
that  defendant  about  once  in  three  weeks  became  intoxicated 
during  the  evening  to  such  an  extent  that  the  next  morning 
he  did  not  go  as  usual  to  his  work,  and  had  continued  to  do 
so  for  two  years,  if  it  had  not  caused  the  loss  of  his  position, 
nor  produced  want  or  suffering  in  his  family. ^^ 

13  Bean  v.  Bean,  11  Lane.  Bar  Rep.  (Pa.)  138. 

14  Porritt  V.  Porritt,  16  Mich.  140. 

15  Porritt  V.  Porritt,  16  Mich.  140;  Tilton  v.  Tilton,  (Ky.)  29  S.  W.  290. 

16  Dennis  v.    Dennis,    68   Conn.  186,  36  Atl.  34,    57   Am.  St.    Rep.  95, 
34  L.  R.  A.  449  and  note;  Magahay  v.  Magahay,  35  Mich.  210. 


[72] 


CHAP.  Xli.j  DISCRETIONARY    CAUSE.  [§  134. 


CHAPTER  XH 

DISCRETIONARY   CAUSES. 

§  134.  In  general.  j      136.  Washington. 

135.  Rhode  Island.  I 

§  134.     In  general. 

In  a  few  states  the  courts  have  been  authorized  by  statute 
to  grant  divorces  in  their  discretion  upon  sufficient  proof  that 
they  would  be  conducive  to  domestic  harmony,  or  that  they 
would  be  reasonable  and  proper  for  the  welfare  of  the  parties, 
and  in  accordance  with  the  peace  and  morality  of  society. 
Such  discretion  means  a  judicial  discretion,  and  not  the  dis- 
cretion of  the  parties,  and  it  must  be  conservative  and  rea- 
sonable. 

§  135.     Bhode  Island. 

Wilful  desertion  for  five  years  of  either  or  the  parties,  or 
such  desertion  for  a  shorter  period  of  time,  in  the  discretion 
of  the  court,  is  a  ground  for  divorce.^ 

§  136.     "Washington. 

A  divorce  may  be  granted  upon  application  of  either  party 
for  any  cause  deemed  by  the  court  sufficient,  and  the  court 
must  be  satisfied  that  the  parties  can  no  longer  live  together.^ 

1  R.  I.  Laws,  (1902),  Chap.  971. 

»  Ballinger's  Codes  &  Statutes,     §  5716. 


[73] 


§  137.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XIII. 


CHAPTER  XIII. 


DESERTION. 


146.  Refusal  to  cohabit. 

147.  Refusal    to   renew    cohabita- 

tion. 

148.  Refusal  to  follow  husband. 

149.  Refusal  to  follow  wife. 

150.  Husband's  liability  for  sup- 

port of  wife. 

151.  Posting  wife. 

152.  Desertion  is  not  excused  by 

continuing   support. 

153.  Presumption  of  death. 

154.  Refusal  of  sexual  intercourse. 


137.  Definition  of  desertion. 

138.  Desertion   must   be   continu- 

ous. 

139.  Intention  to  desert. 

140.  Intention  to  desert  must  be 

wilful. 

141.  Cohabitation    must    actually 

cease. 

142.  Constructive  desertion. 

143.  Separation    by    mutual    con- 

sent is  not  desertion. 

144.  Desertion  where  both  parties 

dwell  under  same  roof. 

145.  Refusal  to  leave  native  coun- 

try. 


§  137.     Definition  of  desertion. 

Desertion  or  abandonment,  as  it  is  sometimes  called,  is  the 
wilful  and  wrongful  leaving  of  one  spouse  by  the  other.  It 
does  not  mean  ceasing  to  have  sexual  relations;  it  means  to 
cease  cohabitation  as  well  as  sexual  intercourse.  It  means 
deliberate  and  unjustly  leaving  the  other,  and  living  separate 
and  apart,  and  it  must  continue  uninterruptedly  for  the  period 
of  time  fixed  by  the  statute.  In  drawing  a  libel  for  divorce 
on  the  ground  of  desertion  or  abandonment  the  wording  of 
the  statute  should  be  carefully  followed  and  the  libel  or  peti- 
tion for  divorce  should  be  signed  by  the  libellant  or  plaintiff. 

Desertion  consists  in  a  cessation  of  cohabitation  with  a 
determination  on  the  part  of  the  offender  not  to  renew  it.^ 
And  if  the  defendant  has  been  insane  during  the  period  of 


1  Bennett  v.  Bennett,  43  Conn.  313. 


[74] 


CHAP.  XIII.]  DESERTION.  [§   138. 

desertion  required  by  the  statute  to  entitle  the  plaintiff  to  a 
divorce,  it  cannot  be  included  in  computing  the  time.^ 

§  138.     Desertion  must  be  continuous. 

In  order  to  justify  the  granting  of  a  divorce  on  the  ground 
of  desertion  or  abandonment,  the  desertion  must  continue 
uninterruptedly  for  the  full  statutory  period.^  If  a  suit  on 
the  ground  of  cruelty  has  been  brought  in  good  faith,  the 
period  of  its  pendency  cannot  be  computed  on  a  charge  of 
desertion.^ 

§  139.     Intention  to  desert. 

The  complainant  must  clearly  show  that  the  defendant  in- 
tended to  desert.^  But  a  separation  from  necessity,  such  as 
inability  by  the  husband  to  support  the  wife,  does  not  con- 
stitute  desertion.* 

§  140.     Intention  to  desert  must  be  wilful. 

The  plaintiff  must  show  that  the  desertion  was  intended  by 
the  party  leaving,  and  that  it  was  wilful  and  deliberate,  not 
only  to  leave,  but  to  permanently  cease  cohabitation.' 

§  141.     Cohabitation  must  actually  cease. 

With  a  few  exceptions  cohabitation  must  actually  cease. 

2  Blandy  v.  Blandy,  20  App.  (D.  C.)  535. 

3  Holston  V.  Holston,  23  Ala.  777;  Reed  v.  Reed,  62  Ark.  611,  37  S.  W.  230; 
Phelan  v.  Phelan,  135  111.  445,  25  X.  E.  751;  Holmes  v.  Holmes,  44  Mich. 
555,  7  N.  W.  228;  Gaillard  v.  Gaillard,  23  Miss.  152;  Conger  v.  Conger,  13 
N.  J.  Eq.  286. 

4  Weigel  V.  Weigel,  63  N.  J.  Eq.  677,  52  Atl.  1123. 

5  Bennett  v.  Bennett,  43  Conn.  313;  McCoy  v.  McCoy,  3  Ind.  555;  Orr 
V.  Orr,  8  Bush  (Ky.),  156;  Pidge  v.  Pidge,  44  Mass.  257;  Rudd  v.  Rudd, 
33  Mich.  101;  Jennings  v.  Jennings,  13  X.  J.  Eq.  38;  Rogers  v.  Rogers,  18 
N.  J.  Eq.  445;  McClurg  v.  McClurg,  66  Pa.  St.  366;  Thorpe  v.  Thorpe,  9 
R.  I.  57;  Besch  v.  Besch,  27  Tex.  390. 

6  Bennett  v.  Bennett,  43  Conn.  313. 

7  Bennett  v.  Bennett,  43  Conn.  313;  Meldowney  v.  Meldowney,  27  N.  J. 
Eq.  328;  Ruckman  v.  Ruckman,  58  How.  Pr.  (N.  Y.)  278. 

[75] 


§  143.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XIII. 

The  ceasing  of  sexual  intercourse  is  not  sufficient,  except  in 
states  where  it  is  prescribed  by  statute  that  a  continuous 
refusal  covering  a  certain  period  of  time  shall  be  deemed 
desertion.* 

§  142.     Constructive  desertion. 

Not  always  is  the  husband  or  wife  who  leaves  the  other  the 
deserter.  The  party  leaving  may  have  a  legal  cause  which 
justifies  such  leaving,  and  the  other  party  is  the  deserter,  as 
where  a  husband  compels  his  wife  or  forces  her  to  leave  home 
by  inhuman  treatment  or  neglects  to  provide  for  her.^  And 
if  the  wife  by  her  misconduct  causes  the  husband  to  leave  her, 
she  will  be  held  to  have  consented  to  the  separation.  ^<^  But 
the  conduct  of  one  party  to  justify  the  other  in  leaving  must 
be  of  such  a  nature  as  to  be  inconsistent  with  the  marital  re- 
lation, or  to  render  cohabitation  unsafe.^^  Departure  or  ab- 
sence of  one  party  from  the  family  dwelling  place,  caused 
by  cruelty  or  by  threats  of  bodily  harm  from  which  danger 
would  be  reasonably  apprehended  from  the  other,  is  not  de- 
sertion by  the  absent  party,  but  is  desertion  by  the  other 
party.^2 

• 

§  143.     Separation  by  mutual  consent  is  not  desertion. 

A  separation  by  mutual  consent  cannot  be  construed  as 
desertion,  unless  one  of  the  parties  in  good  faith  offers  to  resume 
cohabitation  and  such  offer  is  refused." 

8  Stewart  v.  Stewart,  78  Me.  548,  57  Am.  Rep.  822.  But  see  Danforth 
V.  Danforth,  88  Me.  120,  51  Am.  St.  Rep.  380,  31  L.  R.  A.  608;  Southwick 
V.  Southwick,  97  Mass.  327,  93  Am.  Dec.  95. 

9  Levering  v.  Levering,  16  Md.  213;  Palmer  v.  Palmer,  22  N.  J.  Eq.  88. 

10  Gray  v.  Gray,  15  Ala.  779. 

11  Kinsey  v.  Kinsey,  37  Ala.  393;  Harding  v.  Harding,  22  Md.  337;  Lever- 
ing?;. Levering,  16  Md.  213;  Fera  v.  Fera,  98  Mass.  155;  Cornish  v.  Cornish, 
23  N.  J.  Eq.  208;  Sowers's  Appeal,  89  Pa.  St.  173. 

12  Pollock  V.  Pollock,  9  S.  D.  48,  68  N.  W.  176. 

13  Crow  V.  Crow,  23  Ala.  583;  Gray  v.  Gray,  15  Ala.  779;  Lynch  v. 
Lynch,  33  Md.  328;  Cooper  v.  Cooper,  17  Mich.  205,  97  Am.  Dec.  182; 

[76] 


CHAP.  XIII.]  DESERTION.  [§    144. 

§  144.     Desertion  where  both  parties  dwell  under  same  roof. 

There  are  cases  where  the  courts  have  granted  decrees  for 
divorce  where  both  parties  continued  to  dwell  under  the  same 
roof.^"*  The  courts  as  a  rule,  however,  hold  that  there  must 
be  an  actual  desertion  from  the  home  or  place  of  residence. 

§  145.     Refusal  to  leave  native  country. 

The  refusal  of  the  wife  to  accompany  her  husband  to  a 
foreign  country  is  not  per  se  a  wilful  and  malicious  desertion. ^^ 

§  146.     Refusal  to  cohabit. 

Where  a  marriage  is  performed  under  an  agreement  that 
the  parties  will  not  cohabit,  and  the  purpose  of  the  marriage 
is  to  prevent  a  conviction  of  bastardy  and  to  legitimatize  the 
children  of  the  parties,  a  divorce  may  be  granted  although  the 
marriage  was  not  consummated  by  coition. ^^  A  wife  is  guilty 
of  desertion  where  she  refuses  to  occupy  the  husband's  bed 
and  leaves  his  home  on  the  morning  after  the  marriage  without 
any  cause. ^^  So  where  a  husband  marries  to  avoid  a  prosecu- 
tion for  bastardy  and  immediately  leaves  the  wife  and  never 
cohabits  with  her,  she  may  obtain  a  divorce  for  desertion  al- 
though the  marriage  was  not  consummated.^*  Again,  a  wife 
who  refuses  to  remove  to  her  husband's  home  or  to  cohabit 
with  him  in  her  home  is  guilty  of  desertion.^** 

§  147.     Refusal  to  renew  cohabitation. 

Where  the  parties  have  consented  to  live  apart,  either  party 
may  revoke  such  consent  at  any  time,  and  if  one  of  them 

Simpson  v.  Simpson,  31  Mo.  24;  Goldbeck  v.  Goldbeck,  18  N.  J.  Eq.  42; 
Ingersoll  v.  Ingersoll,  49  Pa.  St.  249;  McGowen  v.  McGowen,  52  Tex. 
657;  Power  v.  Power,  65  N.  J.  Eq.  93,  55  Atl.  111. 

1*  Evans  v.  Evans,  93  Ky.  510,  20  S.  W.  605;  Anshutz  v.  Anshutz,  16  N.  J. 
Eq.  162. 

15  Bishop  V.  Bishop,  30  Pa.  St.  412. 

18  Franklin  v.  Franklin,  154  Mass.  515,  28  N.  E.  681,  26  Am.  St.  Rep.  ^6, 
13  L.  R.  A.  843. 

"  PUgrim  V.  Pilgrim,  57  Iowa,  370,  10  N.  W.  750. 

18  McQuaid  v.  McQuaid,  Wright  (Ohio),  223. 

19  Sisemore  v.  Sisemore,  17  Ore.  542,  21  Pac.  820. 

[77] 


fill     ^ 
1 


§  149.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.   [CHAP.  XIII. 

honestly  seeks  in  good  faith  to  renew  cohabitation,  and  the 
other  dedines,  this  refusal  constitutes  desertion. ^° 

§  148.     Refusal  to  follow  husband. 

As  a  rule  the  husband  has  the  legal  and  moral  right  to  fix 
the  place  of  domicil,  as  he  is  considered  the  head  and  support 
of  the  family,  and  if  for  business  or  any  other  reason  he  re- 
moves to  another  state  or  locality,  and  his  wife  refuses  to  follow 
him,  she  is  guilty  of  desertion.^^  In  Massachusetts  it  has  been 
held  that  a  divorce  obtained  by  the  husband  in  another  state, 
in  accordance  with  the  statutes  of  that  state,  for  desertion  by 
the  wife,  who  lived  in  Massachusetts,  where  the  parties  were 
married  and  resided  until  his  removal  to  the  other  state,  which 
was  not  for  the  purpose  of  obtaining  the  divorce,  will  be  recog- 
nized as  valid,  in  Massachusetts,  it  appearing  that  the  wife 
was  duly  served  with  process  in  Massachusetts,  in  accordance 
with  the  statutes  of  the  other  state,  and  it  not  appearing  that 
she  separated  from  her  husband  for  justifiable  cause, ^^ 

§  149.     Refusal  to  follow  wife. 

A  husband  was  unable  to  support  his  wife  and  children 
owing  to  his  poverty.  The  wife  removed  to  another  place 
where  she  supported  herself.  After  the  removal  the  husband 
visited  his  family  but  once,  and  made  no  provision  whatever 
for  their  support.  It  was  held  that  he  was  not  guilty  of  de- 
sertion. The  law  must  not  be  so  construed  as  to  require  him 
to  follow  her  to  such  places  as  for  any  cause  she  may  see  fit  to 
go  in  order  to  escape  the  imputation  of  voluntary  absence. ^^ 

MDanforth  v.  Danforth,  88  Me.  120,  51  Am.  St.  Rep.  380,  31  L.  R.  A. 
608. 

21  Kennedy  ?J.  Kennedy,  87  111.  250;  Babbitt  v.  Babbitt,  69  111.  277;  Walker 
V.  Leighton,  31  N.  H.  Ill;  Hunt  v.  Hunt,  29  N.  J.  Eq.  96;  Hair  v.  Hair, 
10  Rich.  Eq.  (S.  C.)  163. 

22  Loker  v.  Gerald,  157  Mass.  42,  31  N.  E.  709,  34  Am.  St.  Rep.  252, 
16  L.  R.  A.  497  and  note. 

23  Frost  V.  Frost,  17  N.  H.  251. 

[78] 


[chap.   XIV.  FRAUD,    DURESS    AND    MISTAKE.  [§    155. 


CHAPTER  XIV. 

FRAUD,    DURESS    AND    MISTAKE. 


155.  Fraud. 

156.  Fraudulent  contract. 

157.  Duress. 


I   158.  Mistake. 

159.  Antenuptial  intercourse. 


§  155.     Fraud. 

Where  the  wife  is  pregnant  by  another  man  at  the  time  of 
marriage,  and  fraudulently  conceals  this  fact  from  her  hus- 
band, it  is  such  a  fraud  as  to  render  the  marriage  void.^  A 
marriage  will  be  annulled  where  an  innocent  man  has  been 
entrapped  into  marrying  a  pregnant  woman.'  But  a  marriage 
will  not  be  annulled  for  the  husband's  fraud  in  inducing  a 
marriage  by  false  representations  as  to  his  character  or  prop- 
erty. So  where  a  husband  represented  that  his  former  wife 
was  dead,  when  in  fact  he  had  been  divorced  from  her,  the  court 
held  that  this  was  not  sufficient  fraud  to  justify  a  divorce.' 

§  156.     Fraudulent  contract. 

Fraud  or  deception  by  one  of  the  parties,  if  it  consists  of 
gross,  outrageous  falsehood  or  misrepresentation  will  render 
the  marriage  voidable.^ 

§  157.     Duress. 
A  marriage   ceremony   performed   through   compulsion   or 

1  Baker  v.  Baker,  13  Cal.  87;  Ritter  v.  Ritter,  5  Blackf.  (Ind.)  81;  Carris 
V.  Carris,  2-1  N.  J.  Eq.  516;  Scott  v.  Shufeldt,  5  Paige  (N.  Y.),  43;  Morris 
V.  Morris,  Wright  (Ohio),  630. 

2  Reynolds  v.  Reynolds,  85  Mass.  605. 

3  Clarke  v.  Clarke,  11  Abb.  Pr.  (N.  Y.)  228. 

*  Leavitt  v.  Leavitt,  13  Mich.  452;  Carris  v.  Carris,  24  N.  J.  Eq.  516. 

6  [  81  ] 


[^.  vr6i' 


§  149.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.   [CHAP.  XIII. 

honestly  seeks  in  good  faith  to  renew  cohabitation,  and  the 
other  declines,  this  refusal  constitutes  desertion. ^° 

§  148.    Refusal  to  follow  husband. 

As  a  rule  the  husband  has  the  legal  and  moral  right  to  fix 
the  place  of  domicil,  as  he  is  considered  the  head  and  support 
of  the  family,  and  if  for  business  or  any  other  reason  he  re- 
moves to  another  state  or  locality,  and  his  wife  refuses  to  follow 
him,  she  is  guilty  of  desertion. ^^  In  Massachusetts  it  has  been 
held  that  a  divorce  obtained  by  the  husband  in  another  state, 
in  accordance  with  the  statutes  of  that  state,  for  desertion  by 
the  wife,  who  lived  in  Massachusetts,  where  the  parties  were 
married  and  resided  until  his  removal  to  the  other  state,  which 
was  not  for  the  purpose  of  obtaining  the  divorce,  will  be  recog- 
nized as  valid,  in  Massachusetts,  it  appearing  that  the  wife 
was  duly  served  with  process  in  Massachusetts,  in  accordance 
with  the  statutes  of  the  other  state,  and  it  not  appearing  that 
she  separated  from  her  husband  for  justifiable  cause. ^^ 

§  149.     Refusal  to  follow  wife. 

A  husband  was  unable  to  support  his  wife  and  children 
owing  to  his  poverty.  The  wife  removed  to  another  place 
where  she  supported  herself.  After  the  removal  the  husband 
visited  his  family  but  once,  and  made  no  provision  whatever 
for  their  support.  It  was  held  that  he  was  not  guilty  of  de- 
sertion. The  law  must  not  be  so  construed  as  to  require  him 
to  follow  her  to  such  places  as  for  any  cause  she  may  see  fit  to 
go  in  order  to  escape  the  imputation  of  voluntary  absence. ^^ 

zoDanforth  v.  Danforth,  88  Me.  120,  51  Am.  St.  Rep.  380,  .31  L.  R.  A. 
608. 

21  Kennedys.  Kennedy,  87  111.  2.50;  Babbitt  v.  Babbitt,  69  111.  277;  Walker 
V.  Leighton,  31  N.  H.  Ill;  Hunt  v.  Hunt,  29  N.  J.  Eq.  96;  Hair  v.  Hair, 
10  Rich.  Eq.  (S.  C.)  163. 

22Loker  v.  Gerald,  157  Mass.  42,  31  N.  E.  709,  34  Am.  St.  Rep.  252, 
16  L.  R.  A.  497  and  note. 

23  Frost  V.  Frost,  17  N.  H.  251. 
[78] 


[chap.   XIV.  FIIAUD,    DURESS    AND    MISTAKE.  [§    155. 


CHAPTER  XIV. 

FRAUD,    DURESS    AND    MISTAKE. 

§  155.  Fraud.  |§   158.  Mistake. 

156.  Fraudulent  contract.  159.  Antenuptial  intercourse. 

157.  Duress.  | 

§  155.     Fraud. 

Where  the  wife  is  pregnant  by  another  man  at  the  time  of 
marriage,  and  fraudulently  conceals  this  fact  from  her  hus- 
band, it  is  such  a  fraud  as  to  render  the  marriage  void.^  A 
marriage  will  be  annulled  where  an  innocent  man  has  been 
entrapped  into  marrying  a  pregnant  woman. ^  But  a  marriage 
will  not  be  annulled  for  the  husband's  fraud  in  inducing  a 
marriage  by  false  representations  as  to  his  character  or  prop- 
erty. So  where  a  husband  represented  that  his  former  wife 
was  dead,  when  in  fact  he  had  been  divorced  from  her,  the  court 
held  that  this  was  not  sufficient  fraud  to  justify  a  divorce.^ 

§  156.     Fraudulent  contract. 

Fraud  or  deception  by  one  of  the  parties,  if  it  consists  of 
gross,  outrageous  falsehood  or  misrepresentation  will  render 
the  marriage  voidable."* 

§  157.     Duress. 
A  marriage   ceremony   performed   through   compulsion   or 

1  Baker  v.  Baker,  13  Cal.  87;  Ritter  v.  Ritter,  5  Blackf.  (Ind.)  81;  Carris 
V.  Carris,  24  N.  J.  Eq.  516;  Scott  v.  Shufeldt,  5  Paige  (N.  Y.),  43;  Morris 
V.  Morris,  Wright  (Ohio),  630. 

2  Reynolds  v.  Reynolds,  85  Mass.  605. 

3  Clarke  v.  Clarke,  11  Abb.  Pr.  (N.  Y.)  228. 

*  Leavitt  v.  Leavitt,  13  Mich.  452;  Carris  v.  Carris,  24  N.  J.  Eq.  516. 

6  [  81  ] 


§  159.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XIV. 

through  fear  of  death  or  bodily  harm  is  invalid,  unless  after- 
wards ratified  by  the  party  by  voluntary  sexual  intercourse 
or  cohabitation,  or  by  assent.^  So  a  husband  will  be  granted 
a  divorce  where  the  marriage  has  been  contracted  under  duress 
of  imprisonment  under  a  void  process  or  under  a  false  charge." 

§  158.    aiistake. 

Mistake  or  error  as  a  ground  for  nullity  is  held  to  apply  to 
nothing  short  of  a  positive  mistake  as  to  person.  Nothing 
else  is  a  sufficient  ground.^  "Nothing  would  be  more  dan- 
gerous than  to  allow  those  who  have  agreed  to  take  each  other 
in  terms,  'for  better  or  worse,'  to  be  permitted  to  say  that  one 
of  the  parties  is  worse  than  expected."  * 


§  159.     Antenuptial  intercourse. 

Where  a  man  has  had  sexual  intercourse  with  his  wife  before 
marriage,  and  a  child  is  born,  and  the  husband  knows  that  the 
child  cannot  be  his,  it  is  not  sufficient  ground  to  avoid  the 
marriage.®  So  if  a  man  marries  a  woman  whom  he  knows  to 
be  with  child,  and  with  whom  he  himself  has  had  unlawful 
intercourse,  being  induced  to  marry  her  by  assurances  that 
the  child  is  his,  and  not  taking  any  further  steps  to  ascertain 
its  paternity,  nor  suspecting  her  unchastity  with  any  other 
man  than  himself,  the  court  will  not  declare  the  marriage  void, 
although  it  appears  that  he  could  not  have  been  the  father  of 
the  child. ^°  Again,  if  a  man  marries  a  woman  whom  he  knows 
to  be  unchaste,  having  had  sexual  intercourse  with  her,  the 

6  Bassett  v.  Bassett,  9  Bush  (Ky.),  696. 
«  Collins  V.  Collins,  2  Brewst.  (Pa.)  515. 

7  Rex  V.  Burton,  3  M.  &  S.  537. 

8  Long  V.  Long,  77  N.  C.  304.     See  also  Scroggins  v.  Scroggins,  3  Dev. 
(N.  C.)  535. 

9  Carris  v.  Carris,  24  N.  J.  Eq.  516;  Hoffman  v.  Hoffman,  30  Pa.  St.  417. 

10  Foss  V.  Foss,  94  Mass.  26. 

[  S2  ] 


CHAP.   XIV.]  FRAUD,    DURESS    AND   MISTAKE.  [§   159. 

court  will  not  declare  the  marriage  void  for  the  reason  that 
she,  on  the  day  thereof,  being  at  the  time  pregnant  with  a 
bastard  child  of  which  he  was  not  the  father,  assured  him  she 
was  not  pregnant,  and  he  married  her  on  the  faith  of  that 
assurance.** 

"  Crehore  v.  Crehore,  97  Mass.  330,  93  Am.  Dec.  98. 


[83] 


§  161.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.    [CHAP.  XV, 


CHAPTER  XV. 

IMPOTENCY. 

160. 

In  general. 

1  169. 

Burden  of  proof. 

161. 

Knowledge   of  defect. 

170. 

Absence  of  sexual  intercourse. 

162. 

Causes   of   impotency. 

171. 

Examination    of   defendant's 

163. 

Advanced  age. 

person. 

164. 

Existence    at    time    of    mar- 

172. 

Refusal  to  submit  to  exam- 

riage. 

ination. 

165. 

Natural   impotency. 

173. 

Impotency  must  be  alleged. 

166. 

Temporal  impotency. 

174. 

Time  of  instituting  proceed- 

167. 

Curable    impotency. 

ings. 

168. 

The  defect  must   be  one  of 
copulation. 

§  160.     In  general. 

The  incapacity  of  either  party  to  consummate  the  marriage, 
by  reason  of  a  defect  of  physical  organization  or  infirmity, 
is  a  cause  of  divorce  from  the  bonds  of  matrimony.  And  by 
the  laws  of  some  states,  such  a  cause,  existing  at  the  time  of 
the  marriage,  renders  the  contract  voidable,  and  it  may  be 
declared  void  ah  initio  by  a  sentence  of  nullity.^ 


§  161.     Knowledge  of  defect. 

Where  an  impotent  person,  knowing  his  defect,  induces  a 
person  not  cognizant  of  it  to  marry  him,  he  commits  thereby 
a  gross  fraud  and  a  grievous  injury;  and  even,  if  he  is  himself 
ignorant  of  it,  there  is  equally  an  injury,  though  without  in- 
tentional wrong.  In  the  former  case  the  marriage  would  be 
clearly  voidable  on  the  sole  ground  of  fraud,  if  the  principles 
governing  other  contracts  were  applied  to  it;  in  the  latter  case 
it  would  seem  to  be  equally  voidable  on  the  ground  of  mistake, 

1  See  divorce  laws  of  the  several  states,  infra,  p.  — . 
[84] 


CHAP.  XV.]  IMPOTENCY.  [§   162. 

and  the  violation  of  the  implied  warranty.  But,  owing  to  the 
peculiar  nature  of  marriage,  this  infirmity,  though  sometimes 
treated  as  a  pure  fraud  is,  according  to  the  better  opinion,  to 
be  regarded  in  a  somewhat  different  aspect,  yet  as  present- 
ing some  of  the  elements  of  fraud. ^ 

§  162.     Causes  of  impotency. 

Idiocy.  Impotency  may  be  caused  from  idiocy  in  which 
case  it  is  no  ground  for  divorce.^ 

Loss  of  testes.  Impotency  may  be  caused  by  the  loss  of  one 
or  both  testes.  The  loss  of  one  testis  does  not  as  a  rule  affect 
the  procreative  powers;  the  loss  of  both  renders  a  man  in- 
curably   impotent."* 

Relaxation.  Relaxation  of  the  parts,  the  result  of  masturba- 
tion, causing  the  male  to  become  wholly  incapable.^ 

Malformation,  or  disease.  Malformation  of  the  organs  by 
disease,  large  obstructions,  rupture  and  hydroceles,  or  some 
deformity  rendering  copulation  impossible  or  imperfect.® 

Lack  of  development.  Impotency  may  be  caused  in  the 
female  by  a  lack  of  development  or  the  want  of  child-bearing 
organs,  or  by  lack  of  physical  capacity,^  as  narrowness  of  the 
vagina,  adhesion  of  the  labia,  absence  of  the  vagina,  imper- 
forated hymen,  tumors  in  the  vagina,  and  sterility.* 

§  163.    Advanced  age. 

Old  age  sometimes  renders  a  man  incapable,  and  where,  in 
a  suit  for  divorce  for  impotency,  the  libellant  was  seventy- 
three  years  of  age  and  the  respondent  sixty,  the  court  held 
that,  though  the  suit  should  be  dismissed  for  want  of  any 

2  See  statutes  of  the  several  states,  infra,  p.  233. 

3  Norton  v.  Norton,  2  Aik.  (Vt.)  188. 

*  Principles  of  Forensic  Medicine,  7th  Ed.  Guy  &  Ferrier,  p.  59. 
5  Principles  of  Forensic  Medicine,  7th  Ed.  Guy  &  Ferrier,  p.  61. 
«  Principles  of  Forensic  Medicine,  7th  Ed.  Guy  &  Ferrier,  p.  57. 

7  J.  G.  V.  H.  G.,  33  Md.  401,  3  Am.  Rep.  183. 

8  Principles  of  Forensic  Medicine,  7th  Ed.  Guy  &  Ferrier,  p.  64. 

[  S5  ] 


§  168.]  THE    LAW   OF    MARRIAGE    AND    DIVORCE.   [CHAP.  XV. 

proof  save  the  statement  of  the  libellant  alone,  yet  it  was 
doubtful  whether  a  divorce  should  be  decreed  in  any  event.® 
A  divorce  wUl  not  be  granted  on  the  ground  of  impotency 
where  the  parties  are  at  an  advanced  age  at  the  time  of  mar- 
riage.^" 

§  164.     Existence  at  time  of  marriage. 

The  impotency  must  exist  at  the  time  of  the  marriage 
and  be  incurable,  in  order  to  constitute  a  ground  for  divorce 
or  annulment. ^^ 

§  165.     Natural  im.potency. 

When  the  defect  is  natural,  the  legal  presumption  is  that  it 
existed  at  the  time  of  the  marriage,  but  a  contrary  presump- 
tion arises  when  it  is  merely  accidental. ^^ 

§  166.     Teraporary  im.potency. 

A  temporary  or  occasional  incapacity  for  copulation  is  not 
a  groimd  for  a  decree  of  nullity.  The  defect  must  be  perma- 
nent and  lasting. ^^ 

§  167.     Curable  im.potency. 

A  marriage  will  not  be  annulled  for  curable  impotency." 
The  infirmity  or  defect  must  be  incurable. ^^ 

§  168.     The  defect  must  be  one  of  copulation. 

The  defect  must  be  one  of  copulation,  not  of  reproduction. 

»  Fulmer  v.  Fulmar,  13  Phila.  (Pa.)  166. 

10  Briggs  V.  Morgan,  3  Ph.  Ecc.  325. 

11  Ferris  v.  Ferris,  8  Conn.  166;  Powell  v.  Powell,  18  Kan.  371,  26  Am. 
Rep.  774;  J.  G.  v.  H.  G.,  33  Md.  401,  3  Am.  Rep.  183;  Bascomb  v.  Bascomb, 
25  N.  H.  267;  Devanbagh  v.  Devanbagh,  5  Paige  (N.  Y.),  554,  28  Am.  Dec. 
443. 

12  Brown  v.  Brown,  1  Hag.  Ecc.  523. 

13  Kempf  V.  Kempf,  34  Mo.  211. 

14  Bascomb  v.  Bascomb,  25  N.  H.  267;  Devanbagh  v.  Devanbagh,  6 
Paige  (N.  Y.),  175. 

16  Griffeth  v.  Griffeth,  162  lU.  368,  44  N.  E.  820. 
[86] 


CHAP.  XV.]  IMPOTENCY,  [§169. 

Barrenness  will  not  invalidate  the  marriage,  but  the  copulation 
should  be  complete  and  not  imperfect.  ^^ 

§  169.     Burden  of  proof. 

The  burden  of  proof  is  on  the  complainant  to  show  that  the 
impotency  existed  at  the  time  of  the  marriage,  that  it  still 
exists,  and  that  it  is  incurable;  and  the  pleadings  must  so 
state." 

§  170.     Absence  of  sexual  intercourse. 

The  fact  that  the  parties  had  occupied  the  same  room  and 
bed  nightly  for  a  long  time,  and  the  alleged  incompetent  person 
had  refused  and  had  admitted  inability  to  have  sexual  inter- 
course, is  not  sufficient  evidence  to  prove  impotency.^*  At 
the  trial  of  a  libel  for  divorce  by  a  husband  against  his  wife, 
alleging  impotency  on  the  part  of  the  wife,  it  appeared  that 
the  parties  had  occupied  the  same  bed  for  a  period  of  ten 
years,  both  being  in  good  health;  that  the  marriage  had  never 
been  consummated  by  any  act  of  sexual  intercourse;  that  the 
husband  had  often  tried  to  have  intercourse  with  his  wife  but 
she  utterly  refused  to  permit  it,  giving  no  reason  for  her  re- 
fusal; that  the  husband  did  not  know  that  the  wife  was  physi- 
cally incapable  of  the  act  of  sexual  intercourse;  and  that  the 
wife  refused  to  submit  to  an  examination  as  to  her  physical 
capacity.  A  female  witness  testified  that  the  wife  had  said 
to  her  that  "she  could  not  have  connection  with  any  man," 
but  gave  no  reason,  nor  explanation  why  she  could  not.  It 
was  held,  that  this  statement  of  the  wife,  taken  together  with 
the  other  evidence,  would  justify  a  finding  that  the  charge  in 
the  libel  was  proved;  and  that  a  ruling  that  the  evidence  would 
not,  in  law,  justify  such  a  finding  was  a  subject  of  exception. ^^ 

16  J.  G.  V.  H.  G.,  33  Md.  401. 

17  Lorenz  v.  Lorenz,  93  III.  376;  Devanbaghr.  Devanbagh,  5  Paige  (N.  Y.), 
554,  28  Am.  Dec.  443. 

18  Ferris  v.  Ferris,  8  Conn.  166. 
"Merrill  v.  Merrill,  126  Mass.  228. 

[87] 


§174.]  THE    LAW   OP   MARRIAGE    AND    DIVORCE.    [CHAP.  XV. 

§  171.     Examination  of  defendant's  person. 

The  court  may  order  the  defendant's  person  to  be  examined 
by  a  surgeon,  and,  upon  the  evidence  of  the  surgeon  making 
the  examination,  the  bill  may  be  sustained.^"  An  examination 
is  the  only  means  of  ascertaining  the  true  condition. ^^  When 
the  lack  of  present  capacity  is  admitted,  the  court  will  direct 
that  a  surgical  examination  be  made,  together  with  an  ex- 
amination of  the  party  under  oath,  to  determine  if  it  existed 
at  the  time  of  the  marriage.22  Where  it  is  alleged  that  the 
wife's  impotency  is  from  malformation,  the  court  will  order 
an  examination.23  In  a  suit  for  annulment  on  the  ground  of 
physical  incapacity  resulting  from  disease,  a  compulsory  refer- 
ence cannot  be  made.  This  can  only  be  done  under  the  stat- 
ute where  the  incapacity  is  congenital. 2^* 

§  172.     Refusal  to  submit  to  examination. 

A  refusal  to  submit  to  an  examination  raises  the  presump- 
tion that  the  defendant  is  impotent.^^ 

§  173.     Impotency  must  be  alleged. 

Impotency  must  be  alleged  in  the  petition  and  proved  to 
be  incurable  to  justify  a  divorce.^^ 

§  1 74.     Time  of  instituting  proceedings. 

The  validity  of  a  marriage  under  such  circumstances  can 
be  assailed  only  in  the  lifetime  of  both  parties,  and  by  the 
injured  party.  A  wife  may,  if  she  chooses,  live  with  a  hus- 
band who  is  impotent,  and  he  cannot  then  avoid  the  duties 
of  the  marital  relation,  such  as  support  and  maintenance  by 
having  the  marriage  dissolved.     Suits  for  divorce  upon  these 

20  Devanbagh  v.  Devanbagh,  5  Paige  (N.  Y.),  554,  28  Am.  Dec.  443. 

21  Le  Barron  v.  Le  Barron,  35  Vt.  365. 

22  Newell  V.  Newell,  9  Paige  (N.  Y.),  25. 

23  A.  C.  V.  B.  C,  11  Wkly.  Notes  of  Cas.  (Pa.)  479. 
24Morrell  v.  Morrell,  17  Hun  (N.  Y.),  324. 

25  Merrill  v.  Merrill,  126  Mass.  228. 

26  Roe  V.  Roe,  29  Pittsb.  L.  J.  (Pa.)  319. 

[S8] 


CHAP.   XV.]  IMPOTENCY.  [§   174. 

grounds  should  be  brought  within  a  reasonable  time  after 
marriage,  for  if  the  parties  continue  to  live  together  for  an 
unreasonable  length  of  time  after  ascertaining  the  true  con- 
dition, or  when  they  might  with  reasonable  diligence  have  as- 
certained the  true  condition,  it  indicates  insincerity  or  bad 
faith  on  the  part  of  the  petitioner  or  libellant.  For  this  reason 
many  of  the  states  have  passed  laws  regulating  the  time,  after 
marriage,  in  which  divorce  proceedings  or  annulments  shall 
be  begun. 

Under  no  circumstances  does  the  law  permit  the  parties  to 
cohabit  while  suit  is  pending. ^^ 

27  Chapman  v.  Chapman,  25  X.  J.  Eq.  394. 


[89] 


§  176.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.   [CHAP,  XVI. 


CHAPTER  XVL 

INSANITY. 


175.  In  general. 

176.  Degree   of  insanity. 

177.  Collateral   attack. 


§  178.  Insanity  after  marriage. 
179.  An     insane     person     cannot 
bring  libel. 


§  175.     In  g-eneral. 

No  insane  person  or  idiot  is  capable  of  contracting  marriage. 
A  person  cannot  make  a  valid  contract  unless  he  is  capable 
of  understanding;  he  must  have  mental  capacity  to  give  con- 
sent.^ The  insanity  or  idiocy  must  exist  at  the  time  of  the 
marriage  contract,  or  at  the  time  the  ceremony  is  performed, 
to  render  the  marriage  void  or  voidable.  If  a  person  is  only 
temporarily  insane,  and  afterwards  recovers  or  during  a  lucid 
interval  consents  to  the  marriage,  it  will  be  held  valid.^ 

§  176.     Degree  of  insanity. 

To  prove  a  marriage  void  on  the  ground  of  insanity,  it  is 
necessary  to  show  that  the  insanity  is  total,  and  that  the  form 
or  degree  of  insanity  was  such  at  the  time  of  marriage  that 
the  party  did  not  possess  sufficient  mental  capacity  to  have 
understood,  in  a  reasonable  manner,  the  nature  and  effect  of 
the  marriage  contract.^  The  insanity  which  renders  a  mar- 
riage void  must  exist  at  the  time  that  the  marriage  ceremony 
was  performed.     Subsequent  or  prior  insanity  is  no  ground 

1  Rawdon  v.  Rawdon,  28  Ala.  565. 

2  Orchardson  v.  Cofield,  171  111.  14,  49  N.  E.  197,  63  Am.  St.  Rep.  211, 
40  L.  R.  A.  256. 

3  Orchardson  v.  Cofield,  171  111.  14,  49  N.  E.  197,  63  Am.  St.  Rep.  211, 
40  L.  R.  A.  256;  St.  George  v.  Biddeford,  76  Me.  593;  Lewis  v.  Lewis,  44 
Minn.  124,  46  N.  W.  323,  20  Am.  St.  Rep.  559, 9  L.  R.  A.  263  and  note;  Ward 
V  Dulaney,  23  Miss.  410. 

[90] 


CHAP.  X\7.]  INSANITY.  [§  177. 

for  a  divorce  or  an  annulment  of  a  marriage.  In  an  Indiana 
case  the  court  said,  "although  a  court  has  jurisdiction  to  grant 
a  divorce  for  causes  which  the  court  shall  deem  proper,  a 
divorce  will  not  be  granted  for  insanity  arising  after  marriage, 
as  the  court  can  grant  a  divorce  to  the  injured  party  only 
where  the  other  party  is  a  wrongdoer."  *  But  in  a  Washing- 
ton case,  it  was  held  that  an  act  of  the  legislature  making 
incurable  chronic  mania  or  dementia  existing  for  more  than 
ten  years  a  ground  for  divorce  was  valid,  as  the  matter  was  a 
rightful    subject   of   legislation.^ 

§  177.     Collateral  attack. 

The  legislature  has  power  to  pass  a  statute  providing  that 
the  validity  of  existing  marriages  shall  not  be  questioned  in 
the  trial  of  collateral  issues,  on  account  of  the  insanity  or 
idiocy  of  either  party .^ 

§  178.     Insanity  after  marriage. 

In  Florida,  a  divorce  may  be  granted  in  case  of  the  incurable 
insanity  for  four  years  of  one  of  the  parties.'^ 

In  Idaho,  insanity  after  marriage  is  a  cause  for  divorce. 
The  statute  provides  that  no  divorce  shall  be  granted  on  this 
ground  unless  such  insane  person  has  been  regularly  confined 
m  an  insane  asylum  for  at  least  six  years  next  preceding  the 
commencement  of  the  action  for  divorce,  and  that  no  action 
shall  be  maintained  upon  this  ground  unless  the  plaintiff  shall 
have  been  an  actual  resident  of  the  state  for  at  least  one  year 
next  preceding  the  commencement  of  the  action. 

In  Indian  Territory,  where  either  party  subsequent  to  mar- 
riage has  become  permanently  or  incurably  insane,  a  divorce 
may  be  granted. 

*  Curry  v.  Curry,  1  Wilson  (Ind.),  236. 

5  Hickman  v.  Hickman,  1  Wash.  257,  24  Pac.  445,  22  Am.  St.  Rep.  148. 

8  Goshen  v.  Richmond,  86  Mass.  458. 

7  See  divorce  laws  of  these  states. 

[91] 


§  179.]  THE   LAW   OF    MARRIAGE   AND   DIVORCE.  [CHAP.    XVI. 

In  Pennsylvania,  where  the  wife  is  a  lunatic  or  non  compos 
mentis,  a  relative  or  next  friend  may  petition  for  divorce. 

In  Washington,  in  cases  of  incurable,  chronic  mania  or 
dementia  of  either  party  having  existed  for  ten  years  or  more, 
the  court  may  in  its  discretion  grant  a  divorce. 

§  179.    An  insane  person  cannot  bring  libel. 

A  bill  of  divorce  filed  by  an  insane  person  while  in  close 
confinement  is  invalid.^  Where  alleged  acts  of  cruelty  are 
inflicted  by  an  insane  person,  it  is  not  ground  for  divorce, 
unless  inflicted  in  a  lucid  interval.  And  where  defendant  had 
been  recently  confined  in  an  asylum,  it  was  held  the  plaintiff 
should  prove  lucidity.^ 

8  Bradford  v.  Abend,  89  111.  78,  31  Am.  Rep.  67. 

»  Tiffany  v.  Tiffany,  84  Iowa,  122,  50  N.  W.  554;  Broadstreet  v.  Broad- 
street,  7  Mass.  474. 


[92] 


CHAP.  XVII.]  REFUSAL  TO  SUPPORT.  [§   180. 


CHAPTER  XVII. 

REFUSAL  TO   SUPPORT. 

§  180.  In  general.  |§  183.  Pecuniary  ability. 

181.  Wife  able  to  support  herself.       184.  Squandering  wife's  property. 

182.  Physical  weakness.  I 

§  180.     In  general. 

Where  the  husband,  being  of  sufficient  ability,  cruelly  or 
wilfully  refuses  or  neglects  to  support  his  wife,  it  is  a  ground 
for  divorce  in  most  states.  And  in  those  states  where  the 
statutes  make  no  provision  for  divorce  on  the  ground  of 
refusal  to  support,  if  the  husband  refuses  or  neglects  to  supply 
his  wife  with  the  common  necessaries  of  life,  and  she  has  no 
other  means  of  obtaining  support,  it  is  held  sufficient  ground 
to  warrant  her  in  leaving  him,  and  the  husband  will  be  the 
deserting  party. ^ 

§  181.     "Wife  able  to  support  herself. 

If  the  wife  has  independent  means,  or,  if  she  has  for  some 
time  past  supported  herself  by  her  own  earnings,  she  will  not 
be  entitled  to  a  divorce.^ 

§  182.     Physical  weakness. 

If  the  husband's  neglect  to  supply  his  wife  with  the  common 
necessaries  of  life  is  due  to  his  physical  weakness  or  enforced 
poverty,  the  wife  wUl  not  be  entitled  to  a  divorce.^ 

§  183.     PecTiniary  ability. 

The  courts  hold  that  the  test  m  cases  for  divorce  on  the 

1  Morris  V.  Morris,  20  Ala.  168;  Warner  v.  Warner,  54  Mich.  492,  20 
N.W.  557. 

2  Washburn  v.  Washburn,  9  Cal.  475;  Ryeraft  v.  Ryeraft,  42  Cal.  444. 

3  Baker  v.  Baker,  82  Ind.  146. 

[93] 


§  184.]  THE  LAW  OF   MARRIAGE   AND    DIVORCE.  [CHAP.  XVII. 

ground  of  refusal  or  neglect  to  support  is  the  possession  by 
the  husband  of  sufficient  means  in  property  to  furnish  her 
maintenance,  and  not  his  capacity  of  acquiring  such  means.^ 

§  184.    Squandering  wife's  property. 

It  has  been  held  that  if  the  husband  squanders  the  wife's 
property  and  for  several  months  neglects  to  provide  for  her, 
she  will  be  entitled  to  a  divorce.^  The  general  rule,  however, 
is  that  it  must  be  more  than  a  neglect  to  provide.  The  libel- 
lant  must  show  not  only  that  her  husband  had  means  to  pro- 
vide for  her,  but  that  he  wilfully,  and,  in  some  states,  cruelly 
neglected  to  provide,  that  she  was  without  means,  and  that 
she  actually  suffered  for  the  want  of  the  necessaries  of  life.^ 
If  the  inability  arises  through  imprisonment,'  insanity,^  sick- 
ness, or  inability  to  procure  emplojonent,  the  wife  will  not  be 
entitled  to  a  divorce.^ 

*  Fellows  V.  Fellows,  8  N.  H.  160;  Famsworth  v.  Famsworth,  58  Vt.  555, 
5  Atl.  401. 

5  Hurl  hurt  v.  Hurlburt,  14  Vt.  561. 

6  Runkle  v.  Runkle,  96  Mich.  493,  56  N.  W.  2;  Randall  v.  Randall,  37 
Mich.  563;  Faller  v.  Faller,  10  Neb.  144;  Davis  v.  Davis,  37  N.  H.  191;  John- 
son V.  Johnson,  4  Wis.  135. 

">  Hammond  v.  Hammond,  15  R.  I.  40. 
8  Baker  v.  Baker,  82  Ind.  182. 
8  Davis  V.  Davis,  37  N.  H.  191. 


[94] 


CHAP.   XVIII.] 


EXCEPTIONAL   CAUSES. 


[§  185. 


CHAPTER  XVm. 


EXCEPTIONAL   CAUSES. 


185.  Sodomy. 

186.  Crime  against  nature. 

187.  Immoral  or  criminal  conduct. 

188.  Fleeing  from  justice. 

189.  Gross  neglect  of  duty. 


§  190.  Joining  Shakers  or  like  soci- 
eties. 

191.  Indignities. 

192.  Defamation  of  character. 

193.  Living  apart  for  years. 


§  185.     Sodomy. 

Sodomy  committed  by  the  husband,  though  not  adultery, 
is  within  the  statute  making  extreme  cruelty  ground  for 
divorce.^ 

§  186.     Crime  against  nature. 

In  Alabama,  the  crime  against  nature  with  mankind  or  beast 
is  a  ground  for  absolute  divorce.^ 

§  187.     Immoral  or  criminal  conduct. 

In  California,  immoral  or  criminal  conduct  is  a  ground  for 
absolute  divorce.' 


§  188.     Fleeing  from  justice. 

In  North  Carolina,  if  the  husband  is  indicted  for  felony, 
and  flees  from  the  state,  and  fails  to  return  within  one  year 
from  the  time  the  indictment  is  foimd,  it  is  a  cause  for  divorce.^ 

In  Virginia,  when  either  party,  charged  with  an  offence 
punishable  with  death  or  confinement  in  the  penitentiary,  has 

1  .\nonymous,  2  Ohio  N.  P.  342;  Poler  v.  Poler,  32  Wash.  400,  73  Pac.  372. 

2  -•Ua.  Code,  e.  37,  §  1485. 

3  Fleming  v.  Fleming,  95  Cal.  430,  30  Pac.  566,  29  Am.  St.  Rep.  124. 
♦  N.  C.  Code,  §  2743. 

[95] 


§  191.]        THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XVIII. 

been  indicted  and  is  a  fugitive  from  justice,  and  has  been  ab- 
sent for  two  years,  the  other  party  is  entitled  to  a  divorce.^ 

§  189.    Gross  neglect  of  duty. 

In  Kansas,  Oklahoma,  and  Ohio,  any  gross  neglect  of  duty 
is  made  a  ground  for  divorce.^ 

§  190.     Joining:  Shakers  or  like  societies. 

The  joining  of  a  religious  society,  such  as  the  Shakers,  who 
profess  to  believe  matrimonial  intercourse  improper  and  un- 
lawful, and  refusing  to  cohabit  for  six  months,  is  a  cause  for 
divorce  in  New  Hampshire^ 

§  191.     Indignities. 

Habitual  indignities,  which  have  caused  undeserved  suffer- 
ing, even  though  they  may  not  be  attended  with  physical 
violence,  or  be  of  such  an  extreme  nature  as  to  render  the 
party  incapable  of  discharging  marital  duties,  have  been  held 
sufficient.*  So  where  the  husband  was  in  the  habit  of  using 
vile  and  abusive  language  toward  his  wife,  causing  her  much 
mental  suffering,  and  fits  of  illness,  threatening  permanent 
injury  to  her  health,  the  court  held  that  the  wife  was  entitled 
to  a  divorce  on  the  ground  of  cruelty.^  So  a  false  charge  of 
adultery  has  been  held  sufficient,^"  as  has  been  continual 
scolding,  fault-finding,  unkind  language,  contempt  and  petty 
acts  of  a  malicious  nature  which  impair  the  wife's  health. ^^ 
In  a  New  Hampshire  case  it  appeared  that  the  wife  had  been 
practising  Christian  Science  and  that  the  husband  was  op- 

6  Pollard's  Code  (1904),  §2257. 

8  Leach  v.  Leach,  46  Kan.  724,  27  Pac.  11;  Thorp  v.  Thorp,  Wright 
(Ohio),  763;  Schwartz  v.  Schwartz,  6  Ohio  Dec.  525;  Wilson's  Ann.  Stat. 
(1903),  §  4832. 

7  Fitts  V.  Fitts,  46  N.  H.  184;  Dyer  v.  Dyer,  5  N.  H.  271. 

8  Rose  V.  Rose,  9  Ark.  507;  Briggs  v.  Briggs,  20  Mich.  34. 

9  Powelson  v.  Powelson,  22  Cal.  358;  Gholston  v.  Gholston,  31  Ga.  625. 
loPinkard  v.  Pinkard,  14  Tex.  356;  Wheeler  v.  Wheeler,  53  Iowa,  511; 

Goodman  v.  Goodman,  26  Mich.  417;  Allen  v.  Allen,  31  Mo.  479. 

11  Marks  7-.  Marks,  56  Minn.  264,  64  N.  W.  561,  45  Am.  St.  Rep.  466. 

[90] 


CHAP.  XVIII.]  EXCEPTIONAL   CAUSES.  [§  192. 

posed  to  her  so  doing.  This  caused  the  husband  to  become 
morose,  moody,  and  inattentive  to  his  business.  He  was 
troubled  occasionally  with  insomnia  and  loss  of  appetite  and 
became  generally  despondent  and  unhappy  from  his  changed 
domestic  relation.  It  was  admitted  that  the  wife  was  kind 
and  peaceable  and  a  good  mother.  The  court  held  that  the 
husband  was  entitled  to  a  divorce.^'  But  a  divorce  will  not 
be  granted  the  husband  on  the  ground  of  extreme  and  repeated 
cruelty  on  the  part  of  the  wife,  where  the  evidence  simply 
shows  that  she  was  rude,  petulant  and  passionate,  and  that 
she  threatened  violence,  but  on  no  occasion  actually  struck 
him  or  inflicted  any  bodily  suffering  upon  him."  And 
where  it  is  shown  that  the  husband  neglected  to  provide 
necessaries,  and  was  frequently  intoxicated,  and  used  profane 
and  abusive  language,  followed  by  a  single  act  of  violence, 
the  court  held  that  it  was  such  an  indignity  to  the  person  as 
to  justify  a  separation,  and  a  delay  of  ten  years  in  making 
application  for  divorce  was  no  bar.^"*  But  an  indignity  pro- 
voked by  the  plaintiff,  or  a  single  act  of  indignity,  be  it  ever 
so  rude  or  coarse,  is  not  a  ground  for  divorce. ^^ 

§  192.  Defamation  of  character. 

Public  defamation  of  character,  if  wanton  and  malicious, 
is  a  cause  for  divorce  in  Louisiana.  But  mere  abusive  language 
and  charges  made  by  the  husband  while  in  anger  are  not  suffi- 
cient, where  no  one  was  present  but  the  husband  and  wife.^" 
To  constitute  public  defamation,  the  charge  must  be  false  and 
malicious  and  made  in  the  presence  of  others,  and  where  the 

12  Robinson  v.  Robinson,  66  X.  H.  600,  23  Atl.  362,  49  Am.  St.  Rep.  632. 

"Fritts  V.  Fritts,  36  111.  App.  31;  Ennis  r.  Ennis,  92  Iowa,  107,  60  N. 
W.  228;  Johnson  v.  Johnson,  49  Mich.  639,  14  X.  W.  670;  Scott  v.  Scott, 
61  Tex.  119. 

"  Doan  V.  Doan,  3  Clark  (Pa.),  7,  4  Pa.  L.  J.  332. 

15  Richards  v.  Richards,  37  Pa.  St.  357. 

16  Bienvenu  v.  Her  Husband,  14  La.  Ann.  387;  Homes  v.  Carrier,  19 
La.  Ann.  94. 

7  [97] 


§  193.]        THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XVIII. 

husband  charged  his  wife  with  the  crime  of  adultery  in  the 
presence  of  their  servants  and  others,  the  court  held  the  evi- 
dence sufficient  to  grant  a  decree. ^^  But  where  the  wife,  in 
good  faith,  charged  her  husband  with  adultery  to  a  friend,  for 
the  purpose  of  inducing  the  friend  to  intercede  with  the  hus- 
band and  try  to  induce  him  to  return  home,  it  is  not  a  public 
defamation,  although  the  charge  is  false. ^* 

§  193.     Living  apart  for  years. 

In  Kentucky,  living  apart  without  any  cohabitation  for  five 
consecutive  years  next  before  the  application,  is  sufficient 
ground  for  divorce. ^^ 

In  Wisconsin,  whenever  the  husband  and  wife  shall  have 
voluntarily  lived  entirely  separate  for  the  space  of  five  years 
next  preceding  the  commencement  of  the  action,  a  decree  will 
be  granted.^" 

17  Cass  V.  Cass,  34  La.  Ann.  614. 

18  Ashton  V.  Grucker,  48  La.  Ann.  1194. 

19  Ky.  Stat.  §  2117. 

20  Wis.  Rev.  Stat.  §  2356;  Thompson  v.  Thompson,  53  Wis.  153,  10  N.  W. 
166;  Cole  v.  Cole,  27  Wis.  531;  Phillips  v.  Phillips,  22  Wis.  256. 


[98] 


CHAP.  XIX.] 


JURISDICTION. 


[§  194. 


CHAPTER  XIX. 


JURISDICTION. 


194.  Courts  having  jurisdiction. 

195.  Domicil  as  basis  of  jurisdic- 

tion. 

196.  Change  of  domicil. 

197.  Domicil  defined. 

198.  Locus  of  cause. 

199.  Residence    not    sufficient    to 

confer  jurisdiction. 


§  200.  Residence  of  parties  to  suit. 

201.  Different     domicil    lor     hus- 

band and  wife. 

202.  Acquired  jurisdiction. 

203.  Jurisdiction  by  appearance. 

204.  Jurisdiction    of    chancery    to 

decree  nullity  of  marriage. 


§  194.     Courts  having  jurisdiction. 

As  the  ecclesiastical  courts  which,  in  England,  originally  had 
jurisdiction  of  divorce  cases,  were  never  established  in  this 
country,  the  only  jurisdiction  any  court  here  has  is  founded 
on  the  express  conferring  of  such  jurisdiction  upon  it  by 
statute,  under  the  constitutional  prohibition  of  legislative 
divorces.  This  authority  must  be  express  and  will  not  be 
inferred  from  a  general  conferring  of  jurisdiction  in  civil  cases. ^ 
Courts  having  general  powers  in  equity  or  even  in  common  law 
and  equity  combined  do  not,  therefore,  have  jurisdiction  in 
divorce,  unless  the  same  is  expressly  conferred.^ 

Federal  courts  have  no  jurisdiction  in  divorce,  although  they 
have  enforced  decrees  for  alimony.  Divorce  cases  cannot, 
therefore,  be  removed  to  the  federal  courts  under  the  claim 
that  they  are  suits  between  citizens  of  different  states.' 

1  Heathen\-ick  v.  Heatherwick,  32  111.  73;  Wright  v.  Wright,  2  Md.  429, 
56  Am.  Dec.  723;  KeUey  v.  Kelley,  161  Mass.  Ill,  36  X.  E.  837,  25  L.  R.  A. 
806;  Cook  v.  Cook,  56  Wis.  195,  14  X.  W.  33,  43  Am.  Rep.  706. 

2  Sharon  v.  Sharon,  67  Cal.  209,  9  Pac.  187. 

3  Bowman  v.  Bowman,  30  Fed.  849;  Johnson  v.  Johnson,  13  Fed.  193. 

[99] 


§  196.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XIX. 

§  195.     Domicil  as  basis  of  jurisdiction. 

The  law  of  the  place  of  the  actual,  bona  fide  domicil  of  the 
party  or  of  one  of  the  parties  gives  jurisdiction  to  the  proper 
court  to  decree  a  divorce  for  any  cause  allowed  by  the  local 
law,  without  reference  to  the  law  of  the  place  of  the  original 
marriage.^  A  decree  of  divorce  granted  by  a  court  of  the 
state  having  jurisdiction  over  the  petitioning  party  as  a  citizen 
of  the  state  is,  by  the  constitution  of  the  United  States,  valid 
in  all  the  states.^  While  a  marriage  in  a  foreign  state  will 
usually  be  construed  as  valid  if  possible,  a  divorce  is  subjected 
to  the  test  of  jurisdiction  and  domicil  when  it  is  decreed  out- 
side the  real  legal  domicil  of  the  parties,  and  unless  such  test 
can  be  fairly  borne  it  is  set  aside  for  want  of  jurisdiction. 
The  court  will  not  take  jurisdiction  of  a  libel  for  divorce  on 
the  ground  of  adultery,  where  the  parties  were  married  in 
another  state  in  which  the  adultery  was  committed,  the  crimi- 
nal party  still  residing  in  such  state.  It  has,  however,  been 
held  in  Massachusetts,  that  a  Massachusetts  court  has  juris- 
diction of  a  libel  for  divorce,  brought  by  the  husband  residing 
in  another  state,  for  the  cause  of  adultery,  occurring  in  Mas- 
sachusetts where  both  parties  then  resided,  and  where  the 
wife  had  since  remained.® 

§  196.     Change  of  domicil. 

Every  person  must  have  one  domicil,  and  is  presumed  to 
have  that  one  until  he  has  acquired  another  by  a  change  of 
residence,  coupled  with  an  intention  to  acquire  a  new  one. 
No  person  can  have  two  domicils  at  the  same  time.^     In  order 

4  Harteau  v.  Harteau,  31  Mass.  181,  25  Am.  Dec.  372;  Barber  v.  Root, 
10  Mass.  260;  Leith  v.  Leith,  39  N.  H.  20;  Hunt  v.  Hunt,  72  N.  Y.  217,  28 
Am.  Rep.  129;  Ditson  v.  Ditson,  4  R.  I.  87. 

5  Ditson  V.  Ditson,  4  R.  I.  87. 

e  Watkins    v.  Watkins,  1 35  Mass.  83. 

7  Desmare  v.  U.  S.,  93  U.  S.  605,  23  L.  ed.  959;  Carlbertson  v.  Board 
of  Commissioners,  52  Ind.  361;  Abington  v.  North  Bridgewater,  40 
Mass.  170;  De  Meli  v.  De  Meli,  67  How.  Pr.  (N.  Y.)  20;  Mitchell  v.  U.  S., 
21    Wall.    (U.    S.)    350,    22  L.  ed.  584. 

[100] 


CHAP.  XIX.]  JURISDICTION.  [§   197. 

to  acquire  a  new  domicil,  a  person  must  leave  one  place  and 
take  up  a  residence  in  another  with  the  bona  fide  intention  of 
making  the  latter  his  legal  and  permanent  residence.  It  fol- 
lows, therefore,  that  when  a  person  whose  legal  domicil  is  in 
one  state,  goes  into  another  for  the  sole  purpose  of  procuring 
a  divorce  and  with  no  intention  of  remaining  there,  he  does 
not  acquire  that  domicil  which  is  necessary  to  give  the  court 
there  jurisdiction,  and  the  divorce  may  be  declared  void  for 
lack  of  jurisdiction  by  the  courts  of  the  state  of  his  domicU, 
it  being  considered  that  the  courts  of  one  state  have  no  power 
to  change  the  status  of  citizens  of  another  state.*  It  is  not  the 
domicil  of  the  party  at  the  time  of  marriage  or  at  the  time  of 
the  trial  of  the  cause,  but  at  the  time  of  the  application  for 
divorce  that  determines  the  jurisdiction  of  the  court. ^ 

§  197.     Domicil  defined. 

Domicil  means  the  place  where  a  person  lives  or  has  his 
home  to  which,  when  absent  from  it,  he  intends  to  return,  and 
from  which  he  has  no  present  purpose  to  remove.^" 

§  198.     Locus  of  cause. 

Formerly  it  was  held  that  the  locus  of  the  cause  gave  juris- 
diction over  the  parties  to  a  divorce  suit,  but  as  this  doctrine 
interfered  with  the  conceded  right  of  a  state  to  control  the 
status  of  its  citizens  when  such  parties  subsequently  acquired 
a  domicil  in  another  state,  it  has  been  abandoned  and,  in  the 
absence  of  statutory  regulations,  the  place  where  the  cause 
arose  is  immaterial. ^^     As  each  state  has  the  power  to  make 

sSewall  V.  Sewall,  122  Mass.  156,  23  Am.  Rep.  299;  People  v.  Darnell, 
25  Mich.  247;  Colburn  v.  Colbum,  70  Mich.  647,  38  X.  W.  607;  Hoffman 
V.  Hoffman,  46  N.  Y.  30,  7  Am.  Rep.  299;  Pawling  v.  Willson,  13 
Johns.  (N.  Y.)  192. 

9  Barber  v.  Root,  10  Mass.  260:  Hunt  r.  Hunt,  72  N.  Y.  217,  28  Am. 
Rep.  129;  Ditson  v.  Ditson,  4  R.  I.  87. 

10  Home  v.  Home,  9  Ired.  (N.  C.)  99.  See  also  Krone  v.  Cooper,  43  Ark. 
547;  Putnam  v.  Johnson,  10  Mass.  488;  Anderson  v.  Anderson,  42  Vt.  350. 

11  Barber  v.  Root,  10  Mass.  260;  Jones  v.  Jones,  67  Miss.  195,  6  So.  712, 
19  Am.  St.  Rep.  299;  State  v.  Baker,  76  N.  Y.  78. 

[101] 


§  199.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XIX. 

laws  governing  its  citizens,  some  states  have  statutory  pro- 
visions which  make  important  the  consideration  of  the  place 
of  the  cause  and  other  requirements,  such  as  cohabitation  and 
similar  provisions,  and  the  statutes  of  each  state  should  always 
be  examined  before  bringing  suit.^^ 

§  199.     Residence  not  sufficient  to  confer  jurisdiction. 

(a)  Domicii  is  necessary. —  Mere  residence  in  any  state  will 
not  support  a  divorce,  a  domicii  is  necessary. 

Domicii  cannot  be  acquired  in  any  state  by  mere  bodily 
presence  in  such  state,  however  long  continued.  To  acquire 
a  new  domicii,  the  party  must  have  his  abode  in  one  place 
with  the  intention  of  remaining  there,  for  without  such  inten- 
tion no  new  domicii  can  be  gained  and  the  old  one  will  not  be 
lost.  The  United  States  supreme  court  and  the  courts  of  all 
the  states  have  always  held  that  divorce  judgments  founded 
on  mere  residence  were  worthless  and  void.  Bodily  presence, 
in  any  state,  no  matter  how  long  continued  cannot  make  a 
change  of  domicii.  The  old  domicii  is  not  lost  or  a  new  one 
gained  by  mere  bodily  presence,  and  although  the  statutes  of 
most  states  speak  of  the  time  of  residence  required,  they  mean 
and  have  always  been  construed  to  mean  the  length  of  domicii 
required.  There  is  a  vast  difference  between  a  bona  fide  domi- 
cii and  a  mere  residence.  The  supreme  court  of  Massachu- 
setts said,  "The  finding  of  the  single  justice  clearly  means 
that  the  deceased  did  not  get  a  domicii  in  South  Dakota.  He 
meant  to  stay  there  ninety  days,  and  such  further  time,  per- 
haps, as  was  necessary  to  get  his  divorce,  and  then  he  meant 
to  come  back  to  Massachusetts.  It  is  true  that  he  meant  to 
do  all  that  was  needful  to  get  a  divorce,  but  he  meant  it  be- 
cause he  was  mistaken  as  to  what  was  needful.     In  other  words, 

12  Hick  V.  Hick,  5  Bush  (Ky.),  670;  D'Auvilliers  v.  De  Livaudais,  32 
La.  Ann.  605;  Muller  v.  Hilton,  13  La.  Ann.  1,  71  Am.  Dec.  504;  Harding  v. 
Alden,  9  Me.  140;  Harteau  v.  Harteau,  31  Mass.  181,  25  Am.  Dec.  372;  Foss 
V.  Foss,  58  N.  H.  283.     See  Appendix,  p.  459. 

[102] 


CHAP.  XIX.]  JURISDICTION.  [§  199. 

he  only  meant  to  do  what  he  supposed  to  be  needful  and  that 
was  not  enough."^^ 

(b)  Proceedings  should  be  in  place  of  domicil. — Proceedings 
for  divorce  may  be  instituted  where  the  plaintiff,  and  under 
some  circumstances  the  defendant,  has  a  domicil.  The  place 
of  the  marriage,  or  the  offence  and  the  residence  of  the  de- 
fendant are  of  no  consequence.^'*  No  state  has  a  right  to  dis- 
solve the  marriage  of  persons  who  are  residents  of  another 
state. ^^ 

(c)  Laws  of  the  several  states. — Every  state  and  territory 
has  enacted  laws  governing  divorce  and  the  laws  of  all  the 
states  within  the  United  States  require  that  one  of  the  parties 
to  the  divorce  action  must  have  had  a  bona  fide  domicil  in  the 
state  or  territory  of  the  suit  for  a  certain  length  of  time  be- 
fore the  courts  acquire  jurisdiction  to  pronounce  a  divorce 
judgment.  There  is  no  conflict  of  laws  within  the  United 
States  on  the  subject  of  marriage  and  divorce.  Whenever  a 
state  has  refused  to  grant  a  divorce,  or  whenever  the  state 
courts  throughout  the  United  States  and  the  United  States 
supreme  court  have  refused  to  accord  faith  and  credit  to  the 
divorce  judgment  of  a  sister  state  therein,  it  has  been  on  ac- 
count of  fraud ;  it  has  been  because  there  was  a  lack  of  notice 
to  the  defendant;  lack  of  domicil  or  other  fraud.  One  having 
a  domicil  in  Massachusetts  does  not  lose  that  domicil  or  gain 
a  new  domicil  by  going  to  another  state  and  remaining  there 
for  the  length  of  time  required  to  gain  a  domicil,  applying  for 
a  divorce,  obtaining  a  decree  and  immediately  returning  to 

13  Andrews  v.  Andrews,  176  IVIass.  92,  57  N.  E.  333,  affirmed  in  ISS  U.  S. 
14,  47  L.  ed.  366.      See  Atherton  v.  Atherton,  181  U.  S.  155,  45  L.  ed.  794. 

11  Shaw  V.  Shaw,  98  Mass.  158;  Watkins  v.  Watkins,  135  Mass.  83;  Burlin 
V.  Shannon,  115  Mass.  4.38;  Prosser  v.  Wamer,  47  Vt.  667.  (See  note  in 
reprinted  edition.) 

15  Beard  v.  Beard,  21  Ind.  321 ;  People  v.  Baker,  76  N.  Y.  78. 

[  103  ] 


§  199.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XIX. 

Massachusetts,  the  proof  of  intention  is  lacking  and  the  di- 
vorce so  obtained. is  worthless. 

It  is  a  fraud  on  the  laws  of  the  state  which  require  that  a 
divorce  action  be  brought  in  the  state  of  the  domicil.  The 
courts  of  one  state  cannot  divorce  the  citizens  of  another  state.* 
The  divorce  judgments  that  have  been  held  worthless,  there- 
fore, have  been  so  held,  because  the  laws  have  not  been  com- 
plied with  and  not  because  there  is  a  conflict  of  laws.  Mere 
absence  from  a  fixed  home,  however  long  continued,  cannot 
work  a  change  of  domicil.  A  decree  or  judgment  of  divorce  that 
is  invalid  where  it  is  rendered  cannot  have  any  validity  ac- 
corded it  in  any  other  state  or  country. ^^ 

*See  Appendix,  p.  459. 

16  United  States:  Andrews  v.  Andrews,  188  U.  S.  14,  47  L.  ed.  366; 
Bell  V.  Bell,  181  U.  S.  175,  45  L.  ed.  304;  Mitchell  v.  U.  S.,  88  U.  S.  350, 

22  L.  ed.  584;  Streitwold  v.  Streitwold,  181  U.  S.  179,  45  L.  ed.  807. 
Arkansas:  Wood  v.  Wood,  54  Ark.  172,15  S.  W.  459,  43  Am.  St.  Rep.  42. 
Colorado:  Medina  v.  Medina,  22  Colo.   146,  43  Pac.   1001. 
Dakota:  Beach  v.  Beach,  6  Dak.  371,  43  N.  W.  701. 

District  of  Columbia:  Strait  v.  Strait,  3  McArthur  (D.  C.)  415. 

Florida:  Phelan  v.  Phelan,  12  Fla.  449;  Shrader  v.  Shrader,  36  Fla.  502. 

Georgia:  House  v.  House,  25  Ga.  473. 

Illinois:  Dunham  v.  Dunham,  162  111.  589  N.  E.,  35  L.  R.  A.  70. 

Indiana:  Becker  v.  Becker,  160  Ind.  407,  66  N.  E.  1010;  Watkins  v. 
Watkins,  125  Ind.  163,  25  N.  E.  175,  21  Am.  St.  Rep.  217. 

Iowa:  Whitcomb  v.  Whitcomb,  46  Iowa,  437. 

Kansas:  Petterson  v.  Petterson,  57  Kan.  275,  46  Pac.  304. 

Massachusetts:  Adams  v.  Adams,  154  Mass.  290,  28  N.  E.  260,  13 
L.  R.  A.  275;  Andrews  v.  Andrews,  176  Mass.  92,  57  N.  E.  333  (See  same 
case,  188  U.  S.  14,  47  L.  ed.  366);  Chase  v.  Chase,  72  Mass.  157;  Com.  v. 
Kendall,  162  Mass.  221,  38  N.  E.  405;  Sewall  v.  Sewall,  122  Mass.  156, 

23  Am.  Rep.  299. 

Michigan:  Reed  v.  Reed,  52  Mich.  117,  17  N.  W.  720. 

Minnesota:  Thelen  v.  Thelen,  75  Minn.  433,  78  N.  W.  108;  Bomsta  v. 
Johnson,  38  Minn.  230,  36  N.  W.  341. 

Mississippi:  Suter  v.  Suter,  72  Miss.  345,  16  So.  673. 

Missouri:  Carter  v.  Carter,  88  Mo.  App.  302. 

Nebraska:  Wisdom  v.  Wisdom,  24  Neb.  551,  39  N.  W.  594,  8  Am.  St. 
Rep.  215. 

New  Hampshire:  Leith  v.  Leith,  39  N.  H.  20. 

New  Jersey:  Doughty  v.  Doughty,  28  N.  J.  Eq.  581;  Flower  v.  Flower, 
42  N.  J.  Eq.  152,  7  Atl.  669;  McShane  v.  McShane,  45  N.  J.  Eq.  341,  19  Atl. 

[104] 


CHAP.  XIX.]  JURISDICTION.  [§   199. 

Leading  case. 

"On  the  part  of  the  complainant  it  is  claimed  that  the  words 
'resident'  and  'reside,'  as  used  in  the  law,  do  not  have  the 
same  meaning  as  the  word  domicil;  that  the  question  of  inten- 
tion cannot  be  considered  in  determining  such  residence, 
whether  with  reference  to  the  coming  into  the  state  or  that  of 
remaining.  It  is  urged  with  much  abihty  that  the  legislature, 
by  making  the  remaining  within  the  state  a  required,  definite 
time,  to  wit,  six  months,  designed  to  make  such  time  the  evi- 
dence of  intention,  without  reference  to  the  motive  of  the  in- 
habitancy, or  the  future  design  of  the  party.  And  it  is  further 
claimed  that  even  if  this  is  not  the  law,  then  the  testimony 
shows  that  complainant  is  a  resident  within  the  strictest  con- 
struction of  the  term,  and  had  been  for  six  months  before  the 
filing  of  her  bill. 

"We  cannot  concur  entirely  in  the  first  part  of  this  proposi- 
tion. The  residence  contemplated  by  our  law,  in  these  cases, 
cannot,  in  our  opinion,  be  that  of  the  sojourner — the  visitor 
— that  of  one  here  on  business,  or  for  the  accomplishing  of 
a  particular  purpose — with  no  intention  of  remaining.  The 
animus  manendi  must  exist,  in  order  to  constitute  a  residence. 
Not  that,  in  the  language  of  Vattel,  'it  shall  be  a  habitation 
fixed,  with  the  intention  of  always  remaining,'  but  rather  that 
there  shall  be  a  fixed  habitation  or  residence,  without  any 
present  intention  of  remo\T.ng  therefrom. 

"  The  bona  fide  resident  designs  and  expects  to  continue  his 

465;  Firth  v.  Firth,  50  N.  J.  Eq.  137,  24  Atl.  916;  Magowan  v.  Magowan, 

57  N.  J.  Eq.  322,  42  Atl.  330,  73  Am.  St.  Rep.  645;  Streitwolf  v.  Streitwolf 

58  N.  J.  Eq.  563,  43  Atl.  683,  78  Am.  St.  Rep.  630. 

New  York:  Bell  v.  Bell,  4  App.  Div.  527,  affirmed  in  157  X.  Y.  719, 
53  N.  E.  1123,  and  181  U.  S.  175,  45  L.  ed.  864;  Winston  v.  Winston,  165 
N.  Y.  553,  59  N.  E.  273.     See  Appendix,  p.  459. 

Ohio:  Van  Fossen  v.  State,  37  Ohio  St.  317,  41  Am.  Rep.  507. 

Oklahoma:  Beach  v.  Beach,  4  Okla.  359,  46  Pac.  514. 

Pennsylvania:  Appeal  of  Zerfass,  135  Pa.  St.  522,  19  Atl.  1056. 

Rhode  Island:  State  v.  Watson,  20  R.  I.  354,  39  Atl.  193,  78  Am. 
St.  Rep.  871;  Petition  of  Vetterlein,  14  R.  I.  378. 

[105] 


§  199.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XIX. 

home  where  he  brings  liis  suit.  The  one  who  has  a  residence 
temporary  and  fugitive  in  its  character,  however,  leaves  so 
soon  as  divorced,  careless  of  any  fraud  he  may  have  perpe- 
trated, or  any  imposition  practiced. 

"  But,  not  to  further  enlarge  here,  let  us  next  ascertain  what 
'the  approved  usage  of  the  language'  would  dictate  in  givuig 
this  construction.  And  here  we  may  remark,  that  such  is  the 
character  of  our  language  that  nearly,  and  indeed  most  of 
the  words  in  general  use,  will  be  found  to  vary  in  meaning, 
according  to  the  context  or  connection  in  which  they  are  used. 
This  might  be  illustrated  by  a  very  large  reference.  Take 
the  words  'settlement,'  'sentiment,'  'right,'  'apparent,'  'rea- 
sonable,'  'loud,'   'levity,'  and  'restraint,'  as  an  illustration. 

"  Many  of  these  words  we  have  selected  at  random  from  the 
chapter  regulating  divorce  and  alimony;  and  the  curious,  by 
giving  these  words  their  frequent  conceded  meaning,  without 
reference  to  the  connection,  will  readily  see  the  change  or  jar- 
gon that  would  be  made  in  this  chapter.  So  it  is  with  the  word 
reside  or  resident,  in  speaking  of  its  construction  from  the  ap- 
proved usage  of  the  language.  Webster's  definition  is,  'to 
dwell  permanently,  or  for  a  length  of  time;  to  have  a  settled 
abode  for  a  time.  When  the  word  is  applied  to  the  natives 
of  a  state,  or  others  who  reside  in  it  as  permanent  citizens,  we 
use  it  only  with  reference  to  the  part  of  a  city  or  country  in 
which  a  man  dwells.  One  who  resides  or  dwells  in  a  place  for 
some  time.  A  man  lodges,  stays,  remains,  abides,  for  a  day 
or  a  very  short  time,  but  reside  implies  a  longer  time,  though 
not  definite.  To  set,  to  settle.'  It  will  be  observed  that  the 
learned  lexicographer  uses  the  word  'dwell'  in  this  definition. 
The  definition  of  that  is,  'to  abide  as  a  permanent,'  'or  to  in- 
habit for  a  time;'  'to  live  in  a  place.'  Dwell  may  signify  a 
residence  for  life.  And  in  this  definition  he  uses  the  words 
'inhabit'  and  'live.'  To  inhabit  is  to  occupy  as  a  place  of 
settled  residence;  to  live  is  'to  abide,  to  dwell,  to  have  a  set- 
tled residence  in  any  place.'  So  that,  while  no  definite  time 
[106] 


CHAP.  XIX.]  JLTIISDICTION.  [§  199. 

is  necessarily  implied  from  the  word  resident  or  reside,  yet 
permanency  is  implied,  and  expressly  used  in  gi\'ing  the  defi- 
nition. But  take  the  usage  of  the  word,  "When  we  say  a 
man  resides  m  Iowa,  do  we  mean  he  is  on  a  \isit  or  a  basiness 
trip?  "UTien  we  speak  of  A.'s  being  a  resident  of  Xew  York, 
do  we  mean  he  has  gone  on  a  pleasure  excursion  or  to  attend 
to  a  law  suit?  If  you  meet  a  stranger  in  our  streets,  who  has 
been  wdthin  our  state  for  a  year  on  business,  and  ask  him  his 
residence,  he  will  say  'I  reside  in  New  York  (or  Boston),  but 
I  am' at  present  remaining,  staying  or  sojourning  in  your  state,' 
He  would  never  tliink  of  saying,  'I  reside  in  Iowa.'  And  the 
truth  is,  that  these  words  have  a  signification  when  applied  to 
the  citizen,  inhabitant  or  dweller  in  a  state,  that  is  clear,  defi- 
nite, and  well  understood ;  and  approved  usage  clearly  attaches 
to  it  more  than  a  mere  remaining,  sojourning  or  abiding,  with- 
out a  view  to  permanency  or  citizenship.  We  never  approve 
of  its  use  if  applied  to  a  person  who  has  no  intention  to  remain 
in  our  state,  or  an  affirmative  intention  of  lea\'ing  when  a 
particular  object  is  accomplished,  or  when  his  business  is  con- 
cluded. 

"  Let  us  now  see  whether  these  words  have,  or  have  not,  a 
peculiar  and  appropriate  meaning  in  law.  This,  we  must 
determine  by  reference  to  the  text  books,  the  construction  given 
to  them  by  courts,  and  the  connection  in  which  they  are  gen- 
erally used. 

"Bouvier  defines  the  word  resident  as  follows:  *A  person 
coming  into  a  place,  with  an  intention  to  establish  his  domi- 
cil  or  permanent  residence,  and  who  in  consequence  actually 
remains  there.  Time  is  not  so  essential  as  the  intent.'  2 
Law  Diet.  468;  Domat.  Lib.  2,  485.  'Art.  4.  The  principal 
domicil  of  every  one  is  that  which  he  makes  the  seat  and  cen- 
tre of  his  affairs,  and  which  he  does  not  leave  but  on  some  par- 
ticular occasion,  from  whence,  when  absent,  he  is  said  to  be 
from  home,  or  when  he  returns  to,  he  is  said  to  have  come 
home.'     'Art.  5.     Since  the  domicil  is  the  place  of  one's  resi- 

[107] 


§199.]  THE   LAW   OF   MARRIAGE  AND   DIVORCE.     [CHAP.XIX. 

dence,  it  is  all  one  as  to  the  domicil  of  a  person,  whether  he 
reside  or  dwell  in  his  own  house,  or  in  that  of  another,  which 
he  leases,  or  possesses  by  some  other  title.  And  for  the  same 
reason,  that  it  is  the  residence  which  makes  the  domicil;  he 
who  has  a  house  of  his  own  in  a  place  where  he  does  not  reside, 
has  not,  for  all  that,  his  domicil  there.'  By  the  common  and 
canon  law,  the  word  residence  was  peculiarly  used  in  relation 
to  the  benefice  of  the  parson  and  vicar,  and  his  continuance 
therein.  For  reading  of  prayers  and  preaching,  as  also  for 
purposes  of  hospitality,  and  to  maintain  the  house  or  cure  in 
repair,  he  was  required  to  be  present,  to  abide  or  dwell  there; 
and  the  word  resident  is  used  to  show  or  express  this  character 
of  permanency  or  hving.     1  Blackstone,  392. 

"  It  will  be  found  by  Kent,  76,  that  the  learned  author  uses 
the  words  domicil  and  residence,  in  the  same  connection,  not 
perhaps  entirely  in  the  same  sense,  but  speaks  of  the  animus 
manendi,  as  essential  to  the  estabUshment  of  a  resident,  na- 
tional character. 

"In  the  case  of  Crawford  v.  Wilson,  4  Barbour,  520, 
Paige,  J.,  refers  to  the  fact  that  in  Frost  v.  Brisbin,  19 
Wend.  11,  a  distinction  had  been  recognized  between  domicil 
and  residence.  He  also  refers  to  Vattel's  definition  of  domi- 
cil. It  is  also  stated  that,  'the  residence  of  a  foreign  minis- 
ter at  the  court  to  which  he  is  accredited,  is  only  a  tem- 
porary residence.  He  is  not  then  animus  manendi.  The 
same  may  be  said  of  the  officers,  soldiers  and  seamen  in 
the  army  and  navy.  They  may  be  said  to  have  their  domi- 
cil in  one  place  and  their  residence  in  another.  But, 
generally,  residence  and  domicil,  mean  the  same  thing.  The 
place  where  a  man  carries  on  his  established  business,  and 
has  his  permanent  residence,  is  his  domicil.  Inhabitance 
and  residence  are  generally  used  as  synonymous  terms. 
Inhabitancy  and  residence  do  not  mean  precisely  the  same 
thing  as  domicil,  when  the  latter  term  is  applied  to  succes- 
sions to  personal  estate,  but  they  mean  a  fixed  and  perma- 
[108] 


CHAP.  XIX.]  JURISDICTION.  [§  199 

nent  abode  or  dwelling  place  for  the  time  being,  as  contradis- 
tinguished from  a  mere  temporary  locaUty  of  existence.' 
Matter  of  Wrigley,  8  Wend.  140. 

"It  was  held  in  the  Matter  of  Fitzgerald,  2  Caines,  318,  that 
a  resident  withia  the  state,  was  one  who  had  a  residence  of  a 
permanent  and  fixed  character,  not  one  who  had  a  mere  resi- 
dence of  a  temporary  nature.  In  Thorndike  v.  City  of  Bos- 
ton, 1  Mete.  245,  Shaw,  C.  J.,  says:  'The  questions  of  resi- 
dence, inhabitancy,  or  domicil,  although  not  in  all  respects 
precisely  the  same,  are  nearly  so,  and  depend  much  on  the  same 
evidence.'  In  Cadwallader  v.  Howell,  3  Harrison,  144,  Day- 
ton, J.,  says:  'The  expression,  "fixed  residence,"  is  generally 
used  as  tantamount  to  domicil,  though  I  am  not  prepared  to 
say  whether  they  are  or  not,  in  all  respects  convertible  terms.' 
In  Koosevelt  v.  Kellogg,  20  Johns.  210,  Woodworth,  J.,  says: 
'  A  person  resident,  is  defined  to  be  one  dwelling  or  having  his 
abode  in  any  place,  an  inhabitant,  one  that  resides  in  a  place,' 
and  it  was  there  held,  that  inhabitant  and  resident  signified 
the  same  thing.  It  is  true,  that  in  the  subsequent  case  of 
Frost  V.  Brisline,  19  Wend.  11,  these  definitions  were  doubted 
by  C.  J.  Nelson;  but  while  this  doubt  is  expressed,  it  is  there 
held,  'that  a  transient  visit  does  not  make  the  resident;  that 
there  must  be  a  settled,  fixed  abode;  an  intention  to  remain 
permanently.'  In  Spragins  v.  Houghton,  2  Scam.  377,  it  is 
held,  that:  'There  is  no  ambiguity  in  the  word  resident. 
Every  man  is  a  resident,  who  has  taken  up  his  permanent  abode 
in  the  state.'  This  case  was  very  fully  argued  by  able  coun- 
sel, and  the  whole  subject  of  the  meaning  of  the  word  citizen, 
inhabitant,  and  resident,  is  very  fully  reviewed.  It  is  there 
very  clearly  recognized,  that  the  term  inhabitant,  refers  to 
the  place  of  a  person's  residence,  and  excludes  the  idea  of  an 
occasional  or  temporary  residence,  but  contemplates  that 
which  is  bona  fide. 

"The  constitution  of  Kentucky  in  1833,  required  residence 
in  the  state,  and  actual  residence  in  the  county,  for  a  certain 

[109] 


§  199.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.    [CHAP.  XIX. 

time,  as  qualifications  for  electors.  In  the  celebrated  con- 
tested election  case  of  Letcher  v.  Moore,  in  Congress,  it  was 
held  that  the  terms  there  used  meant  the  same  as  that  given 
to  the  word  'home'  in  the  vernacular  tongue,  and  the  term 
domicil  by  the  writers  on  the  civil  law.  But  let  us  look  fur- 
ther into  the  use  of  these  words  and  their  connection  in  the 
constitutions  and  statutes  of  different  states.  In  Maine,  in 
their  constitution  and  laws,  published  in  1819,  in  defining 
the  qualification  of  representatives,  and  in  giving  jurisdiction 
in  cases  of  divorce,  the  words  live  and  reside  are  used.  Ken- 
tucky, in  her  new  constitution,  in  speaking  of  the  quaUfication 
of  electors  and  representatives,  uses  the  word  reside.  So  it  is 
by  new  constitution  of  IncUana.  Michigan,  in  the  pubUshed 
laws  of  1846,  uses  the  word  reside,  in  speaking  of  voters,  and 
also  of  jurisdiction  in  divorce  cases.  So  does  Missouri,  in  the 
laws  of  1845,  on  the  subject  of  divorce.  We  have  not  exam- 
ined the  statutes  of  other  states.  But  in  those  referred  to, 
can  it  be  pretended  that  a  temporary,  casual,  or  fugitive  resi- 
dence was  meant,  and  not  a  permanent  one?  We  apprehend 
not.  And  no  case  can  be  found,  under  these  constitutions  and 
laws,  that  recognizes  any  such  construction.  Their  framers 
were  aware  of  the  fixed,  settled,  and  well  understood  meaning 
of  those  terms,  and  hence  their  use.  And  here,  we  would  re- 
mark, that  it  is  seldom,  if  ever,  that  we  find  the  word  domicil 
used,  in  providing  for  the  inhabitancy  or  residence  of  the  citi- 
zen, in  our  constitutions  and  statutes.  It  may  be  found  in  the 
Civil  Code  of  Louisiana,  and  a  few  other  statutes  following  to 
some  extent,  the  rules  of  the  civil  law,  but  it  is  unusual;  and 
we  regard  it  as  a  legitimate  deduction  therefrom,  that  the 
words  resident,  reside  and  inhabitant,  which  are  most  gene- 
rally used,  have  a  legal  meaning  in  such  connection ;  and  that 
the  intention  of  remaining  permanently  is  an  element  in  de- 
termining the  same— that  they  include  the  idea  of  permanency. 
Otherwise,  we  must  presume  that  it  was  no  part  of  the  object 
of  the  lawmaker  that  permanency,  or  the  intention  to  abide 
[110] 


CHAP.   XIX.]  JURISDICTION.  [§  199. 

and  remain,  should  be  an  element  in  such  residence.    This  we 
cannot  do. 

"  It  is  true,  that  the  question  of  intention  may  at  times  be  ob- 
scure and  difficult  of  ascertainment.  And  the  same  may  be  said 
with  reference  to  the  word  domicil,  in  the  settling  of  which,  it 
is  conceded  in  the  argument  here,  we  must  look  to  the  inten- 
tion. The  same  difficulty  arises  with  regard  to  many  things 
depending  on  intention  under  the  law;  and  yet,  that  intention 
has  to  be  ascertained  from  the  best  Ughts  presented  in  each 
particular  case.  On  this  question,  as  in  others,  certain  acts 
or  circumstances  afford  presumptive  evidence  of  the  intention, 
and,  until  rebutted,  will  be  conclusive,  while  other  cases  may 
arise,  where  such  intention  must  be  deduced  from  a  great  va- 
riety of  minor  circumstances.  So  that  this  is,  in  truth,  an 
argument  that  is  addressed  more  against  the  policy  of  the 
law  and  the  cUfficulty  of  its  administration,  than  as  tending 
to  militate  against  the  construction  here  given. 

"  It  is  doubtless  true,  that  authorities  will  be  found  not  con- 
curring in  detail  with  those  above  cited.  Indeed,  what  is  and 
is  not  a  residence,  for  various  purposes,  has  been  a  subject  of 
much  controversy.  We  are  not  aware,  however,  of  any  au- 
thority that  holds  that  a  mere  transient,  temporary  sojourn, 
with  no  intention  to  remain  permanently,  can  constitute  a 
legal  residence. 

"  As  not  maintaining  the  positions  above  stated,  we  are  re- 
ferred by  complainant's  counsel  to  Story's  Conffict  of  Laws, 
section  44:  'Two  things,'  says  the  author,  'must  concur  to 
constitute  domicil;  first,  a  residence;  and  secondly,  the  inten- 
tion of  making  it  the  home  of  the  party.  There  must  be  the 
fact  and  the  intent.'  We  are  not  able  to  see  that  the  same 
author  gives  any  definition  to  the  term  resident  or  residence. 
The  word  domicil,  we  may  also  suggest,  is  that  used  by  the 
old  law  writers,  and  even  modern  text  books,  as  conveying, 
according   to  law  language,   more  fully   the  whole  meaning 

[111] 


§  199.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.   XIX. 

arrived  at.  And  yet,  as  here  used  and  defined,  it  does  not 
seem  to  us,  that  the  author  can  be  understood  as  saying  that 
residence,  or  the  term  resident,  means  a  dwelhng,  an  abiding 
without  reference  to  intention  or  permanence.  True  it  is, 
there  must  be  the  fact  of  the  intent.  Now,  what  fact?  We 
answer,  the  act  of  abiding;  the  fact  of  a  dwelUng;  a  habitation; 
and  having  this  residence — having  an  abode — this  abode, 
this  dwelhng,  then,  if  the  intent  exists,  the  domicil  is  perfect. 
In  other  words,  the  mere  intent,  without  the  fact  of  residence 
or  abiding,  cannot  constitute  the  domicil.  Neither  can  the 
intent,  without  having  the  abode,  the  home,  the  place  to  dwell, 
constitute  the  residence.  Residence,  as  there  used,  we  think, 
has  reference  to  the  fact  that  the  citizen  or  person  has  a  place 
that,  to  use  an  expressive  word,  is  called  home,  with  no  present 
intention  of  removing  therefrom.  Not  that  the  person  is  to 
remain  continuously  there,  in  order  to  retain  his  residence  or 
domicil,  but  if  absent,  for  a  long  or  short  time,  with  the  animus 
revertendi,  the  domicil  still  continues. 

"The  case  of  Home  v.  Home,  9  Iredell,  99,  asserts  the  same 
doctrine,  as  above  quoted  from  Judge  Story,  and  indeed  so 
much  of  it  as  relates  to  this  question,  will  be  found  to  be  copied 
from  that  work.  The  judge,  however,  in  that  case,  says  that 
'domicil,  in  its  ordinary  and  familiar  use,  means  the  place 
where  a  person  lives  or  has  his  home ;  while,  in  a  large  sense,  it 
is  where  he  has  his  true,  fixed,  and  permanent  home,  to  which, 
when  absent  from  it,  he  intends  to  return,  and  from  which  he 
has  no  present  purpose  to  remove.'  In  other  words,  he  recog- 
nizes an  ordinary  and  familiar  use  of  the  word  domicil,  and 
also  its  use  in  an  enlarged  sense;  and  lays  it  down,  that  the 
fact  of  residence  must  exist,  and  also  an  intention.  It  would 
be  as  hard  to  conceive  a  residence  without  a  place  or  locahty 
to  abide,  dwell,  or  live,  as  it  would  to  conceive  of  a  domicil 
without  the  same.  And  that,  in  our  opinion,  is  what  is  meant: 
and  that  it  is  not  intended  that  a  man  may  have  a  residence, 

rii2i 


CHAP.  XIX.]  JURISDICTION.  [§   200. 

in  legal  acceptation,  without  reference  to  intention,  any  more 
than  he  can  have  a  domicil."^^ 

§  200.     Residence  of  parties  to  suit. 

In  the  leading  case  of  Home  v.  Home,  the  court  says,  ''that 
a  residence  for  however  long  a  time  it  may  be  continued,  can- 
not constitute  a  domicil  without  the  intention  of  permanently 
making  it  a  home,  nor  can  the  shortness  of  time  in  which  the 
new  home  is  enjoyed  defeat  the  acquisition,  when  accompanied 
with  the  intention,  for  in  the  latter  there  would  be  the  factum 
et  animus."  ^*  A  temporary  residence  in  a  place  for  health, 
pleasure,  or  for  any  reason  cannot  give  a  domicU.  Whether  a 
summer  residence  or  a  winter  residence  is  a  domicil,  is  a  ques- 
tion of  intention  of  the  occupant,  he  being  allowed  to  select, 
as  a  rule,  his  domicil.  So  it  is  immaterial  what  kind  of  a 
residence  the  person  has,  whether  owned  or  rented,  large  or 
small,  if  it  is  intended  for  a  domicil. ^^  For  the  purpose  of 
divorce,  the  general  rule  of  jurisprudence  is,  that  a  divorce 
granted  in  the  place  of  the  domicil  of  both  parties,  and  there 
valid,  is  good  everywhere.^" 

§  201.     Different  domicil  for  husband  and  wife. 

While  it  is  generally  stated  that  the  domicil  of  the  husband 
is  the  domicil  of  the  wife,  it  is  also  well  settled  that  where  there 
is  a  cause  for  a  divorce,  the  wife  may  acquire  such  domicil 
apart  from  that  of  the  husband  as  will  enable  the  court  to  take 
jurisdiction  of  the  complaint.  It  has  been  held  also  that  a 
wife  may  acquire  a  separate  domicil  whenever  it  is  necessary 
or  proper. ^^ 

"  Hinds  V.  Hinds,  1  Iowa.  36. 

18  Home  V.  Home,  9  Ired.  (N.  C.)  99. 

19  Abington  v.  Xorth  Bridgewater,  40  Mass.  170;  Hairston  v.  Hairston, 
27  Miss.  704;  FoUweiler  v.  Lutz,  112  Pa.  St.  107,  2  Atl.  721;  Mitchell  v. 
U.  S.,  88  U.  S.  350,  22  L.  ed.  584. 

20  Clark  v.  Clark,  62  Mass.  385. 

21  Gamer  v.  Gamer,  56  Md.  127;  Burtis  v.  Burtis,  161  Mass.  508,  37 
N.  E.  740;  Shaw  v.  Shaw,  98  Mass.  158;  Hood  v.  Hood,  93  Mass.  196,  87 

8  [  113  ] 


§203.]         THE    LAW    OF    MARRIAGE    AND    DIVORCE.   [CHAP.  XIX. 

§  202,     Acquired  jurisdiction. 

While  it  is  settled  that  a  court  of  one  state  has  no  jurisdic- 
tion over  a  citizen  of,  or  one  having  a  domicil  in,  another  state, 
sufficient  to  enable  it  to  bind  by  decree  such  citizen,  yet,  if 
one  of  the  parties  has  a  domicil  in  the  state  and  the  court  has 
jurisdiction  over  him  or  her,  it  may  sometimes  acquire  suffi- 
cient jurisdiction  by  publication,  personal  service,  or  the  ap- 
pearance of  the  defendant,  to  enable  it  to  pass  upon  the  ques- 
tion of  divorce  as  affecting  the  status  of  one  of  its  citizens. ^^ 
The  jurisdiction  thus  acquired  is  of  no  value  to  give  any  extra- 
territorial power  to  its  decrees,  and  they  must  be  limited  to 
the  simple  determination  of  the  status  of  the  citizens  of  its 
own  state  and  no  more.  Even  this  authority  is  strongly 
denied  in  some  states  and  by  express  statute  in  others. ^^  If 
the  innocent  party  has  retained  his  original  domicil  in  the 
state,  it  is  generally  held  that  the  court,  by  constructive  or 
personal  notice,  may  acquire  jurisdiction  over  the  absent  de- 
fendant.^^ As  the  domicil  of  the  wife  follows  that  of  the 
husband,  when  the  husband  moves  to  another  state  and  gains 
a  domicil  there,  jurisdiction  is  also  acquired  over  the  wife  by 
constructive  or  personal  notice,  when  she  refuses  to  follow 
him.^^ 

§  203.     Jurisdiction  by  appearance. 
While  the  consent  of  either  or  both  parties  cannot,  of  itself, 

Am.  Dec.  709;  Ditson  v.  Ditson,  4  R.  1. 87;  Shute  v.  Sargent  (N.  H.),  36  Atl. 
282. 

22  Snyder  v.  Snyder,  1  W'kly.  Notes  of  Cases  (Pa.),  187;  Ditson  v.  Ditson, 
4  R.  I.  87. 

23  Dunham  v.  Dunham,  57  111.  App.  495;  Doughty  v.  Doughty,  27  N.  J. 
Eq.  315;  People  v.  Baker,  76  N.  Y.  78,  32  Am.  Rep.  274;  Prosser  v.  Warner, 
47  Vt.  667,  19  Am.  Rep.  132;  Cook  v.  Cook,  56  Wis.  195,  14  N.  W.  33,  43 
Am.  Rep.  706. 

24  Standridge  v.  Standridge,  31  Ga.  223;  Burtis  v.  Burtis,  161  Mass.  508, 
37  N.  E.  740;  Donnelly  v.  West,  66  How.  Pr.  (N.  Y.)  428;  Stephens  v. 
Stephens,  62  Tex.  337. 

25  Loker  v.  Gerald,  157  Mass.  42,  31  N.  E.  709,  34  Am.  St.  Rep.  252, 
16  L.  R.  A.  497. 

[114] 


CHAP.  XIX.]  JURISDICTION.  [§  204. 

give  the  court  of  another  state  jurisdiction,  yet  if  the  court 
has  jurisdiction  over  the  subject  matter,  by  virtue  of  the 
domicil  of  one  of  the  parties,  the  appearance  of  the  defendant, 
by  himself  or  by  attorney,  completes  the  jurisdiction  of  the 
court  over  his  person.^^ 

§  204.     Jurisdiction  of  chancery  to  decree  ntillity  of  marriage. 

A  court  of  equity  has  no  inherent  jurisdiction  to  annul  a 
marriage  in  the  absence  of  fraud  or  duress.  The  annulment 
of  an  invalid  marriage  cannot  be  decreed  upon  the  application 
of  a  third  party  on  the  ground  that  he  is  the  lawful  husband 
of  the  woman  by  a  prior  marriage,  which  is  still  in  force." 


28  Harrison  v.  Harrison,  20  Ala.  629,  56  Am.  Dec.  227;  Jones  v.  Jones,  108 
N.  Y.  41.5,  15  X.  E.  707,  2  Am.  St.  Rep.  447. 

ii  Ridgely  v.  Ridgely,  79  Md.  298,  29  Atl.  597,  25  L.  R.  A.  800  and  note. 


[115] 


§  206.]  THE    LAW   OF   MARRIAGE    AND    DIVORCE.  [CHAP.  XX. 


CHAPTER   XX. 


PARTIES. 


205.  Who  may  be  plaintiffs. 

206.  Who  are  proper  defendants. 

207.  Incompetency  of  parties. 

208.  Incompetent  defendants  and 

guardians. 


§  209.  Legal  status  of  wife  as  a  party. 
210.  Intervening  parties. 


§  205.     "Who  may  be  plaintiffs. 

The  right  to  bring  suit  for  a  divorce  is  limited  to  the  parties 
to  the  marriage,  in  most  states  to  the  "innocent  party," 
though  in  some  states  the  statutes  permit  either  party  to  bring 
suit.  As  a  general  rule  no  third  person  is  considered  to  be  so 
interested  in  the  result  of  the  suit  as  to  be  allowed  to  maintain 
proceedings.^ 

§  206.    Who  are  proper  defendants. 

The  general  rule  that  no  third  person  is  interested  in  di- 
vorce proceedings  is  varied  by  the  circumstances  that  there 
may  be  questions  of  property  rights,  the  custody  and  main- 
tenance of  children,  and  alimony  for  the  wife  to  be  deter- 
mined. In  cases  where  the  property  of  the  defendant  is 
sought  to  be  reached,  any  person  claiming  an  interest  in  such 
property  may  be  joined  as  a  party  defendant.^  Aside  from 
property  rights,  no  other  consideration  makes  it  proper  to  join 

1  Worthy  v.  Worthy,  36  Ga.  45,  91  Am.  Dec.  758;  Mohler  v.  Shank,  93 
Iowa,  273,  61  N.  W.  981,  57  Am.  St.  Rep.  274;  Birdzell  v.  Birdzell,  33  Kan. 
433,  6  Pac.  561,  52  Am.  Rep.  539;  Winslow  v.  Winslow,  7  Mass.  96;  Hoff- 
man V.  Hoffman,  43  Mo.  .547. 

2  Kashaw  v.  Kashaw,  3  Cal.  312;  Busenbark  v.  Busenbark,  33  Kan.  572, 
7  Pac.  245;  Thurston  v.  Thurston,  .58  Minn.  279,  .59  N.  W.  1017;  Gibson  v. 
Gibson,  46  Wis.  449,  1  N.  W.  147;  Damon  v.  Damon,  28  Wis.  510. 

[116] 


CHAP.  XX.]  PARTIES.  [§  207. 

third  persons  as  defendants.  Children  may  have  an  interest 
in  the  proceedings,  which  may  be  in  the  nature  of  a  property 
interest,  but  not  such  as  to  permit  of  joining  them  as  defend- 
ants.^ The  interest  of  the  parents  of  the  parties  is  not  such 
as  to  permit  of  their  being  joined  as  defendants,  though  they 
were  parties  to  the  marriage  contract.^  The  guardian  of  a 
defendant  ward  should  be  joined  as  a  party  if  any  question  of 
alimony  or  property  rights  is  involved,^ 

§  207.     Incompetency  of  parties. 

It  is  well  settled  that  where  no  property  rights  are  involved 
an  insane  person,  by  himself  or  by  guardian,  cannot  bring  a 
suit  for  divorce,  as  the  right  is  a  strictly  personal  one.^  This 
doctrine  has  been  modified  by  the  statutes  of  some  states, 
which  permit  insane  persons  to  bring  suit  by  guardian.'''  A 
spendthrift  may  bring  a  bill  for  divorce,  as  it  is  a  personal 
right,  but  cannot  do  so  by  guardian.^  If  a  minor  wife  is  of 
sufficient  legal  age  to  contract  marriage,  she  may  bring  suit  to 
dissolve  it.^ 

§  208.     Incompetent  defendants  and  guardians. 

There  are  two  kinds  of  guardians  who  may  appear  in  divorce 
suits,  a  guardian  appointed  generally  to  care  for  the  estate  of 
the  ward  and  a  guardian  ad  litem,  appointed  by  the  court  for 
the  purpose  of  protecting  the  interests  of  his  ward  during  the 
suit.  A  general  guardian  may,  as  a  rule,  and  under  modern 
statutory  provisions,  come  in  and  defend,  where  any  question 

3  Baugh  V.  Baugh,  37  Mich.  59,  26  Am.  Rep.  495;  Faulk  v.  Faulk,  23 
Tex.  653. 

*  D'Auvilliers  v.  De  Livaudais,  32  La.  Ann.  605. 

5  Tiffany  v.  Tiffany,  84  Iowa,  122,  50  N.  W.  554. 

6  Worthy  v.  Worthy,  36  Ga.  45,  91  Am.  Dec.  758;  Bradford  v.  Abend,  89 
111.  78,  31  Am.  Rep.  67;  Birdzell  v.  Birdzell,  33  Kan.  433,  6  Pac.  561,  52  Am. 
Rep.  539. 

^  Cowan  v.  Cowan,  139  Mass.  377,  1  X.  E.  152;  Crump  v.  Morgan,  3  Ired. 
Eq.  (N.  C.)  91,  40  Am.  Dec.  447;  Thayer  v.  Thayer,  9  R.  I.  377. 

8  Winslow  V.  Winslow,  7  Mass.  96;  Richardson  v.  Richardson,  50  Vt.  119. 

9  Besore  v.  Besore,  49  Ga.  378. 

[117] 


§  210.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  XX. 

involving  the  estate  of  his  ward  is  to  be  considered.  The 
guardian  ad  litem  is  appointed  by  the  court  on  suggestion,  or 
on  its  own  motion.  ^° 

§  209.     Legal  status  of  wife  as  a  party. 

The  disabiUty  of  coverture  is  practically  removed  from  the 
wife  under  modern  decisions  and  statutory  provisions,  so  that 
a  feme  covert  may  bring  suit  for  divorce  without  a  next  friend 
or  guardian  ad  litem ^^ 

§  210.     Intervening'  parties. 

The  co-respondent  was  not  until  recently  allowed  to  inter- 
vene in  divorce  cases,  although  his  character  and  reputation 
were  assailed,  but  the  modern  tendency  is  to  allow  such  in- 
tervention.^^ In  Massachusetts  he  is  allowed  by  express  stat- 
ute to  appear  and  defend  whether  libellee  does  or  not.^^ 

A  public  officer  is  required  by  the  statutes  of  some  states  to 
appear  in  divorce  cases  to  protect  the  interests  of  the  state.  ^'* 

In  Colorado,  when  the  defendant  in  a  divorce  case  fails 
to  appear,  the  court  must  appoint  an  attorney  who  shall  secure 
a  fair  and  impartial  hearing  of  the  cause. ^^ 

In  Idaho,  when  the  ground  of  a  petition  for  divorce  is  in- 
sanity, the  district  attorney  must  defend. ^^ 

In  Indiana,  by  act  of  the  legislature  of  1903,  it  is  the  duty 
of  the  prosecuting  attorney  to  appear  and  resist  a  petition 
for  divorce  if  not  contested.^'' 

10  Heller  v.  Heller,  6  How.  Pr.  (N.  Y.)  194;  Stratford  v.  Stratford,  92 
N.  C.  297. 

11  Jones  V.  Jones,  18  Me.  308,  36  Am.  Dec.  723;  Amos  v.  Amos,  4  N.  J.  Eq. 
171;  Wright  v.  Wright,  3  Tex.  168. 

12  Clay  V.  Clay,  21  Hun  (N.  Y.),  609. 

13  Mass.  Rev.  Laws,  c.  152,  §  9. 

14  Creamer  v.  Creamer,  36  Ga.  618;  State  v.  Brinnemar,  120  Ind.  357, 
22  N.  E.  332;  Scott  v.  Scott,  17  Ind.  309;  Willcox  v.  Wayne  Circuit  Judge, 
83  Mich.  1,  47  N.  W.  29;  Eggerth  v.  Eggerth,  15  Ore.  626,  16  Pac.  650. 

15  3  Mills  Ann.  Stat.  p.  400;  Colo.  Laws  (1893),  pp.  238,  239. 

16  Ida.  Code  Civil  Proc.  §3328. 

"  Ind.  Act  of  1903,  pp.  393,  394. 
[118] 


CHAP.  XX.]  PARTIES.  [§  210. 

In  Michigan,  if  th-^re  are  children  under  the  age  of  fourteen 
years,  it  is  the  duty  of  the  prosecuting  attorney  to  intervene. ^^ 

In  Oregon,  the  state  is  constituted  a  party  in  divorce  suits 
and  it  is  the  duty  of  the  district  attorney  to  prevent  fraud 
or  collusion  and  to  control  the  proceedings  for  the  de- 
fence.^^ 

In  Utah,  when  the  ground  of  a  petition  for  divorce  is  the 
insanity  of  defendant,  the  county  attorney  must  defend.^" 

In  Washington,  it  is  the  duty  of  the  district  attorney  to 
control  the  defence. ^^ 

18  3  Miller's  Comp.  Laws  (1897),  p.  2665. 

19  1  Ore.  Codes  &  Stat.  (1902),  p.  456. 

20  Utah  Laws  (1903),  pp.  39,  40. 

21  2  Wash.  Ann.  Codes  &  Stat.   (1897),  p.  1600. 


[119] 


§  211.]  THE  LAW  OF   MARRIAGE   AND   DIVORCE.   [cHAP.   XXI. 


CHAPTER  XXL 


PLEADINGS  AND  PROCEEDINGS  FOR  DIVORCE. 


211.  Venue. 

212.  Drawing  libel. 

213.  Who  may  sign  libel. 

214.  Verification  of  libel. 
Any  number  of  causes  may  be 

inserted. 
Entry  and  order  of  notice. 
Who  may  serve  process. 

218.  Personal  service. 

219.  Notice  by  publication  or  con- 

structive notice. 
Notice  by  registered  letter. 
Personal    service    outside    of 

state. 


215. 

216. 
217. 


220 
221 


§  222.  Acceptance  of  service. 

223.  Identifying  witness. 

224.  Proof  of  service. 
Validity   of   decree   obtained 

on    publication    or   service 
outside  of  the  state  where 
defendant  did  not  appear. 
Regularity  in  service. 

227.  Criminal  provisions. 

228.  Contingent     fee     in     divorce 

cases. 

229.  Amenability     to     charge    of 

libel. 


225. 


226. 


§211.     Venue. 

The  statutes  of  the  different  states  plainly  set  forth  the  venue 
in  actions  for  divorce.  In  a  few  states  the  petition  may  be 
brought  in  any  county  within  the  state,  but,  as  a  rule,  libels 
for  divorce  must  be  heard  and  determined  in  a  court  of  the 
county  in  which  one  of  the  parties  lives,  except  when  the  libel- 
lant  has  left  the  county  in  which  the  parties  have  lived  to- 
gether, the  adverse  party  still  living  therein,  the  libel  may  be 
heard  and  determined  in  the  court  having  jurisdiction  for  that 
county.     Careful  attention  should  be  paid  to  local  statutes.^ 


1  Way  V.  Way,  64  111.  406;  Carpenter  v.  Carpenter,  30  Kan.  712,  2  Pac. 
122,  46  Am.  Rep.  108;  Glaude  v.  Peat,  43  La.  Ann.  161,  8  So.  884;  Harding 
V.  Alden,  9  Me.  140,  23  Am.  Dec.  549;  Banister  v.  Banister,  150  Mass.  280, 
22  N.  E.  900;  Hanson  v.  Hanson,  111  Mass.  158;  Brown  v.  Brown,  10 
Neb.  349,  6  N.  W.  397;  Sherwood's  Appeal,  17  Wkly.  Notes  of  Cases  (Pa.), 
338,  4  Atl.  455. 

[  120  ] 


CHAP.  XXI.]  PLEADINGS  AND  PROCEEDINGS  FOR  DIVORCE.  [§  212. 

§  212.     Drawing  libel. 

Proceedings  for  divorce  are  commenced  by  drawing  the  bill 
of  complaint,  petition,  or  libel,  which  must  set  forth  the 
names  of  the  parties;  when  and  where  they  were  married; 
the  present  residence  of  both  parties;  the  cause  of  action;  the 
place  where  the  cause  of  action  accrued ;  and  that  the  petitioner 
had  always  been  true  to  his  or  her  marriage  vows.  If  there 
are  children  there  should  be  a  prayer  asking  for  the  care  and 
custody  of  the  children.  If  the  petitioner  seeks  alimony  there 
should  be  a  prayer  requesting  that  he  or  she  may  be  allowed 
alimony  pendente  lite,  or  permanent  alimony  as  the  case  may 
be.  In  case  the  petitioner  is  a  woman,  she  may  ask  that  an 
order  be  issued  restraining  the  husband  from  interfering  with 
her  property  or  person  during  the  pendency  of  the  libel,  and 
she  may  further  pray  that  an  attachment  may  issue  on  the 
real  or  personal  property  of  the  defendant  to  secure  alimony. 
In  stating  the  allegations  in  the  libel  or  petition,  great  care 
should  always  be  taken  to  follow  the  language  of  the  statutes.^ 

§  213.     Who  may  sign  libel. 

In  most  states  the  libel  or  petition  must  be  signed  by  the 
libellant  or  petitioner,  if  of  sound  mind  and  of  the  age  of  legal 
consent  to  marry.  A  libel  cannot  be  sustained  if  signed  by  a 
guardian  or  by  an  attorney,  although  the  attorney  was  specially 
empowered  to  sign  it.^  In  some  states,  however,  the  attorney 
may  sign  the  petition  or  libel,  but  it  is  always  better  that  the 
petitioning  party  should  sign. 

§  214.    Verification  of  libel. 

In  most  states  it  is  not  necessary  that  the  libel  or  petition 
should  be  sworn  to."*    Where  a  particular  method  of  verifica- 

2  Stewart  v.  Stewart,  2  Swan  (Tenn.),  591;  Home  v.  Home,  1  Tenn.  Ch. 
259;  Ward  v.  Ward,  1  Tenn.  Ch.  262;  Hare  v.  Hare,  10  Tex.  355. 

3  Gould  V.  Gould,  42  Mass.  382;  Winslow  v.  Winslow,  7  Mass.  96;  Willard 
V.  Willard,  4  Mass.  506;  Daniels  v.  Daniels,  56  N.  H.  219;  Richardson  v. 
Richardson,  50  Vt.  119. 

*  Musselman  v.  Musselman,  44  Ind.  106. 

[121] 


§  217.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.   [CHAP.  XXI. 

tion  is  prescribed,  it  must  be  strictly  followed,  but  if  none  is 
provided  the  usual  form  in  civil  cases  will  suffice.^ 

In  Rhode  Island,  the  petition  must  be  signed  and  sworn 
to  by  the  petitioner,  if  of  sound  mind  and  of  legal  age  to  con- 
tract marriage,  otherwise  after  notice  to  the  party  in  whose 
name  the  petition  shall  be  filed,  the  court  may  allow  such  peti- 
tion to  be  signed  and  sworn  to  by  a  resident  guardian  or  next 
friend.^ 

§  215.    Any  number  of  causes  may  be  inserted. 

Any  number  of  legal  causes  for  divorce  may  be  inserted  in 
the  libel,  and  satisfactory  proof  of  any  one  or  more  of  them, 
in  the  absence  of  a  prevailing  defence,  will  be  sufficient  to 
warrant  the  granting  of  a  decree.'' 

§  216.     Entry  and  order  of  notice. 

After  the  libel  has  been  drawn,  it  must  be  filed  in  the  office 
of  the  clerk  of  the  court  for  the  county  having  jurisdiction, 
and  in  most  states,  the  clerk  issues  the  order  of  notice  to  the 
defendant.* 

§  217.     Who  may  serve  process. 

Where  the  method  and  time  of  serving  summons  is  regu- 
lated by  statute,  but  no  provision  is  made  as  to  who  may 
serve  the  same,  the  presumption  is  that  it  was  the  intention 
of  the  legislature  that  it  be  served  by  the  same  officer  who 
serves  other  writs  and  summonses.^  Under  such  a  statute  a 
constable  or  a  disinterested  person  cannot  serve  the  summons, 
unless  by  a  special  order  of  court. ^"    Where  a  number  of  days 

6  Kelly  V.  Kelly,  18  Nev.  49,  1  Pac.  194,  51  Am.  Rep.  732;  Hoffman  v. 
Hoffman,  30  Pa.  St.  417;  Burdick  v.  Burdick,  7  Wash.  533,  35  Pac.  415. 

«R.  I.  Public  Laws  (1902),  c.  971,  §  3. 

7  Morris  v.  Morris,  20  Ala.  168;  Quarles  v.  Quarles,  19  Ala.  363;  Young 
V.  Young,  4  Mass.  430. 

8  Anonymous,  5  Mass.  197;  Randall  v.  Randall,  7  Mass.  502;  Labotiere 
V.  Labotiere,  8  Mass.  382;  Mace  v.  Mace,  7  Mass.  212. 

9  SpafTord  v.  Spafford,  16  Vt.  511. 

10  Brown  v.  Brown,  15  Mass.  389;  Leavitt  v.  Leavitt,  135  Mass.  191. 

[122] 


CHAP,  XXI.]  PLEADINGS  AND  PROCEEDINGS  FOR  DIVORCE.  [§  218. 

service  is  specified  by  law,  a  service  within  a  less  number  of 
days  does  not  furnish  ground  for  quashing  the  writ,  but  it  will 
be  continued  for  further  service. ^^ 

§  218.     Personal  service. 

In  all  cases  where  the  defendant  is  a  resident  of  the  state, 
he  must  be  served  personally  with  the  summons  and  in  most 
states  with  a  certified  copy  of  the  libel.  It  is  not  personal 
service  to  leave  at  the  last  and  usual  place  of  abode  of  the 
libellee  an  attested  copy  of  the  libel,  nor  is  a  reading  of  it, 
where  personal  service  is  ordered  with  the  summons. ^^ 

§  219.     Notice  by  publication  or  constructive  notice. 

If  the  bill  alleges  that  the  defendant  is  a  nonresident,  the 
law  usually  provides  that  constructive  service  of  notice  by 
publication  shall  be  made.^^ 

Notice  by  publication  does  not  give  the  court  jurisdiction 
over  the  defendant,  unless  he  or  she  voluntarily  appears.  If, 
however,  he  or  she  has  been  regularly  summoned,  the  court 
has  jurisdiction  to  pass  a  decree. ^^ 

§  220.     Notice  by  registered  letter. 

Beside  notice  by  publication,  the  court  may  order  that  a 
copy  of  the  libel  be  mailed  by  registered  letter  to  the  last 
known  address  of  the  defendant,  and  the  registered  receipt, 
with  the  signature  of  the  defendant,  may  be  used  as  evidence 
that  the  defendant  received  the  letter,  provided  the  hand- 
writing of  the  defendant  can  be  proved  to  the  satisfaction  of 
the  court.  ^^ 

"  Bratton  v.  Bratton,  79  Ind.  588. 

12  Welch  V.  Welch,  16  Ark.  527;  Smith  v.  Smith,  9  Mass.  422;  RandaU  v. 
Randall,  7  Mass.  502. 

13  Homston  v.  Homston,  3  Mass.  159;  Wanamaker  v.  Wanamaker,  10 
Phila.  (Pa.)  466;  Ditson  v.  Ditson,  4  R.  I.  87. 

"  Gamer  v.  Gamer,  56  Md.  127.     See  Appendix,  p.  459. 
15  See  divorcG  laws  of  various  states,  infra,  p.  233. 

[123] 


§  224.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.    [CHAP.  XXI. 

§  221.     Personal  service  outside  of  state. 

In  some  states  the  statutes  provide  that  personal  service 
may  be  made  outside  the  state,  and  such  service  is  equivalent 
to  service  by  publication.  It  may  be  done  in  addition  to  the 
publication  and  will  be  considered  actual  notice,  which  is 
always  deemed  desirable  in  divorce  cases. ^* 

The  New  York  courts  will  not  recognize  a  decree  of  divorce 
granted  against  a  resident  of  the  state  of  New  York,  unless 
he  or  she  was  personally  served  with  notice,  and  this  must  be 
done  in  addition  to  publication.  The  weight  of  authority 
favors  this  rule.^^ 

§  222.     Acceptance  of  service. 

An  acceptance  of  service  in  uncontested  cases  is  not  suffi- 
cient, as  it  may  give  rise  to  a  suspicion  of  collusion.  The 
provisions  as  to  service  must  be  strictly  complied  with.^* 

§  223.     Identifying  witness. 

In  some  states  the  law  requires  that,  in  serving  a  libel  for 
divorce,  an  identifying  witness  shall  accompany  the  officer 
when  he  serves  the  libel  to  point  out  the  defendant,  that 
service  may  be  made  on  the  right  party.  Such  witness  must 
be  a  person  who  knows  both  parties,  and  knows  that  they  are 
reported  to  be  husband  and  wife.^® 

§  224.     Proof  of  service. 

If  the  defendant  is  a  nonresident,  the  record  should  contain 
proof  that  the  notice  was  duly  published  according  to  the  order 
of  the  court  for  the  required  length  of  time,  and  that  the 
statute  was  complied  with.^"  Where  the  statute  provides  that 
a  copy  of  the  libel  or  the  summons  be  mailed  to  the  last  known 

16  Burns  v.  Burns,  61  Mo.  App.  612;  Doughty  v.  Doughty,  28  N.  J.  Eq.  581. 

17  See  divorce  laws  of  New  York,  infra,  p.  305.     See  Appendix,  p.  459. 

18  Bittinger  v.  Bittinger,  4  Pa.  Dist.  Rep.  441 ;  Weatherbee  v.  Weatherbee, 
20  Wis.  499. 

19  See  divorce  laws  of  various  states,  infra,  p.  238. 

20  Burns  v.  Burns,  61  Mo.  App.  612.    See  Appendix,  p.  459. 

[124] 


CHAP.  XXI.]  PLEADINGS  AND  PROCEEDINGS  FOR  DIVORCE.  [§  225. 

address  of  the  defendant,  and  the  letter  was  addressed,  "Mrs. 
R.  L.  Smith,"  at  the  post  office  where  the  defendant  was 
always  known  and  addressed  as  "Mrs.  Asahel  L.  Smith," 
it  is  not  enough  to  establish  a  valid  constructive  service.^^ 
The  proof  of  service  must  comply  with  the  local  statute.  No 
variances  as  to  time,  name,  or  address  will  be  permitted.^^ 

§  225.    Validity  of  decree  obtained  on  publication  or  service  out- 
side of  the  state  where  defendant  did  not  appear. 

It  has  been  held,  in  Louisiapa,  that  where  a  divorce  a 
vinculo  matrimonii  is  sought  by  one  of  the  parties  to  a  marriage 
that  was  celebrated  in  Louisiana,  conformably  to  Louisiana 
laws,  against  the  other  party,  who  is  an  absentee,  permanently 
residing  beyond  the  territorial  limits  thereof,  a  court  of  Louisi- 
ana has  ample  jurisdiction  and  authority  to  decide  the  issue, 
it  involving  a  civil  status;  and  that  jurisdiction  attracts  to  it 
authority  to  bring  such  absentee  into  court  by  means  of  sub- 
stituted service  of  citation,  and  subject  him  to  the  judgment 
therein  pronounced.^^ 

§  226.    Regularity  in  service. 

The  requirements  of  the  statute  must  be  strictly  complied 
with  in  every  case,  and  any  irregularity  in  the  service,  either 
personally  or  by  publication,  will  be  held  insufficient  service. 
Thus,  misprint  of  a  name  in  the  copy  published  will  invalidate 
the  service.^'*  But  the  defect  may  be  waived  if  the  defend- 
ant voluntarily  appears. ^^ 

§  227.     Criminal  provisions. 

Some    states    have     passed    criminal    statutes    providing 

21  Smith  V.  Smith,  4  Greene  (Iowa),  266. 

22  Smith  V.  Smith,  4  Greene  (Iowa),  266;  Jenne  v.  Jenne,  7  Mass.  94; 
Burns  v.  Burns,  61  Mo.  App.  612;  Stone  v.  Stone,  25  N.  J.  Eq.  445. 

23  Butler  V.  Washington,  45  La.  Ann.  279,  19  L.  R.  A.  814  and  note. 

24  Jenne  v.  Jenne,  7  Mass.  94. 

25  Stone  V.  Stone,  25  N.  J.  Eq.  445;  Rouse  v.  Rouse,  47  Iowa,  422;  Jamieson 
V.  Jamieson,  53  How.  Pr.  (N.  Y.)  112. 

[125] 


§  228.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXI. 

(a)  That  when  a  divorce  is  granted  for  adultery  or  other  cause 
constituting  a  criminal  offence,  committed  within  the  state 
and  within  the  time  prescribed  by  law  for  making  complaints 
and  finding  indictments  therefor,  the  court  granting  the  di- 
vorce may,  in  its  discretion,  cause  notice  of  such  facts  to  be 
given  by  the  clerk  of  the  court  to  the  district  attorney  for  the 
county  in  which  such  an  offence  was  found  to  have  been  com- 
mitted, together  with  a  list  of  the  witnesses  proving  such 
offence,  and  any  other  information  which  the  court  may  deem 
proper,  and  thereupon,  it  shall  be  the  duty  of  the  district 
attorney  to  cause  complaint  of  the  offence  to  be  made  before 
some  magistrate  having  jurisdiction  thereof,  or  to  present  the 
evidence  thereon  to  the  grand  jury.  (6)  If  persons  divorced 
from  the  bonds  of  matrimony  cohabit  as  husband  and  wife  or 
live  together  in  the  same  house,  they  shall  be  deemed  to  be 
guUty  of  adultery,  (c)  Whoever  falsely  personates  another 
or  wilfully  and  fraudulently  procures  a  person  to  personate 
another,  or  fraudulently  procures  false  testimony  to  be  given, 
or  makes  a  false  or  fraudulent  return  of  service  of  process,  in 
a  suit  for  divorce,  or  any  proceedings  concerned  therewith, 
shall  be  punished  by  fine  or  imprisonment.^® 

§  228.     Contingent  fee  in  divorce  cases. 

It  has  been  held  that  a  contract  between  the  attorney  and 
the  client,  providing  for  a  percentage  of  what  should  be  re- 
covered in  a  divorce  case,  the  minimum  amount  of  which 
was  fixed  at  a  certain  sum  in  case  of  a  settlement,  is  void  as 
against  public  policy.  Public  policy  is  interested  in  main- 
taining the  famUy  relation,  and  where  differences  have  arisen 
which  threaten  disruption,  the  good  of  society  demands  a 
reconciliation,  if  practicable  or  possible,  and  contracts  like  the 
one  in  question  tend  directly  to  prevent  such  reconciliation. 
If  no  contract  was  made  except  the  void  contract,  the  attorney 

26  See  Mass.  Rev.  Laws,  c.  152. 

[126] 


CHAP.  XXI.]  PLEADINGS  AND  PROCEEDINGS  FOR  DIVORCE.  [§  229. 

would  be  entitled  to  recover  what  his  services  were  reasonably 
worth.^^ 

§  229.     Amenability  to  charge  of  libel. 

Naming  a  person  with  whom  one  of  the  parties  has  com- 
mitted adultery,  in  a  divorce  proceeding  before  a  court  having 
jurisdiction  of  the  parties  and  subject-matter,  is  absolutely 
privileged  and  is  not  actionable.^* 

27  McCurdy  v.  Dillon,  (Mich.),  98  X.  W.  747. 

28  Jones  V.  Brownlee,  161  Mo.  258,  61  S.  W.  795,  53  L.  R.  A.  445. 


[127] 


§  231.]         THE   LAW   OF     MARRIAGE   AND   DIVORCE.  [CHAP.  XXII. 


CHAPTER    XXII. 


INTERMEDIATE  PROCESS. 


230.  Cross-bill,  libel,  or  petition. 

231.  Contest  by  guardian. 

232.  Amendments    discretionary. 

233.  Interlocutory  orders. 


§  234.  Interlocutory  decrees. 

235.  Protection    of    wife    pending 

suit. 

236.  Bill  of  particulars. 


§  230.     Cross-bill,  libel,  or  petition. 

It  is  generally  provided  by  statute  that  the  defendant,  who 
may  have  a  cause  for  divorce,  may  file  with  his  answer  to  the 
complaint  of  the  plaintiff  a  cross-pleading  setting  forth  the 
grounds  for  his  action  and  such  other  facts  and  allegations  as 
may  be  required.  The  cross-pleading  may  contain  the  answer, 
though  some  courts  hold  that  the  libel  should  be  answered 
before  a  cross-libel  is  filed. ^  The  defendant,  in  his  cross- 
pleading,  may  pray  for  any  kind  of  relief  in  the  power  of  the 
court,  and  there  should  be  a  general  denial  of  the  allegations 
made  by  the  plaintiff.-  It  is  not  necessary  to  allege  domicil, 
residence,  or  other  jurisdictional  facts,  as  the  court  having 
both  parties  before  it  has  jurisdiction.^ 


§  231.     Contest  by  guardian. 

In  Massachusetts,  the  court  has  jurisdiction  to  entertain  a 
petition  filed  by  a  third  party  representing  that  a  libellant  for 

1  Gilpin  V.  Gilpin,  12  Colo.  504,  21  Pac.  612;  Glasscock  v.  Glasscock,  94 
Ind.  163;  Hoffman  v.  Hoffman,  43  Mo.  547;  Harrison  v.  Harrison,  46  N.  J. 
Eq.  75,  19  Atl.  126. 

2Mott  V.  Mott,  82  Cal.  413,  22  Pac.  1140;  Wadsworth  v.  Wadsworth, 
81  Cal.  182,  22  Pac.  648,  15  Am.  St.  Rep.  38;  Butler  v.  Butler,  38  N.  J.  Eq. 
626;  Pease  v.  Pease,  72  Wis.  136,  39  N.  W.  133. 

3Leseuerv.  Leseuer,  31  Barb.  (N.  Y.)  330;  Glutton  v.  Glutton,  108  Mich. 
267,  66N.W.  52. 
[128] 


CHAP.   XXII.]  INTERMEDIATE   PROCESS.  [§  232. 

divorce  is  insane;  and,  if  such  incapacity  is  established  to  the 
satisfaction  of  the  court,  it  will  appoint  a  guardian  ad  litem  to 
conduct  the  cause. ^  The  appointment  by  the  court  of  a 
guardian  ad  litem  for  a  respondent  to  a  libel,  on  the  ground  of 
insanity,  is  'prima  facie  evidence  of  the  respondent's  insanity 
in  any  subsequent  stage  of  the  cause.^ 

§  232.     Amendments  discretionary. 

Amendments  to  the  pleadings  may  be  made  at  any  time  in 
the  discretion  of  the  court,  with  or  without  terms,  and  the 
exercise  of  such  discretion  is  not  a  ground  of  exception,* 
Thus,  a  bill  for  divorce  for  adultery  may  be  amended  by 
alleging  cruelty  as  a  cause  for  separation.'^ 

§  233.     Interlocutory  orders. 

In  all  proceedings  for  divorce  and  for  the  custody  of  minor 
children,  interlocutory  orders  may  be  passed  by  a  single  judge, 
either  in  term  time  or  vacation.* 

§  234.     Interlocutory  decrees. 

In  some  states,  after  notice  by  publication  or  the  summons 
has  been  served  and  the  time  given  by  statute  for  appearing 
has  expired,  if  the  defendant  fails  to  appear,  the  complainant 
is  entitled  to  a  decree  pro  confesso  and  will  be  allowed  to  take 
testimony  ex  parte.^ 

§  235.     Protection  of  wife  pending  suit. 

In  Massachusetts,  the  court  sitting  in  any  county  may,  on 
the  petition  of  the  wife,  prohibit  the  husband  from  imposing 

4  Denny  v.  Denny,  90  Mass.  311. 

5  Little  V.  Little,  79  Mass.  264. 

«  Harrington  v.  Harrington,  107  Mass.  329;  Ford  v.  Ford,  104  Mass.  198; 
Com.  V.  Giles,  67  Mass.  466;  Gardner  v.  Gardner,  68  Mass.  434;  Whipp  v. 
Whipp,  54  N.  H.  580;  Shay  v.  Shay,  9  Phila.  (Pa.)  521. 

7  Anderson  v.  Anderson,  4  Me.  100,  16  Am.  Dec.  237. 

8  See  Form  No.  25,  p.  368. 

9  See  divorce  laws  of  the  several  states,  infra,  p.  233. 

9  [  129  ] 


§  236.]         THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.    XXII. 

any  restraint  on  her  personal  liberty  during  the  pendency  of 
the  libel.i" 

§  236.    Bill  of  particulars. 

The  defendant  in  a  divorce  suit  may  petition  the  court  for 
a  bill  of  specifications  or  particulars,  if  the  pleadings  are  too 
vague,  as  the  defendant  should  have  a  full  opportunity  to 
understand  the  nature  of  the  charge  and  to  prepare  his  defence. 
The  court  may  in  its  discretion  allow  the  bill.  So  where  a 
libel  charged,  generally,  that  the  respondent  had  committed 
various  acts  of  adultery,  at  divers  times,  with  persons  unknown, 
during  a  period  of  eight  years,  the  court  ordered  the  libellant 
to  file  a  bill  of  particulars.^^  And  one  who  has  furnished  a 
bill  of  specifications  or  particulars  is  confined  to  the  bill.^^ 
Evidence  of  acts  of  adultery  not  mentioned  in  the  specifica- 
tions, is  not  admissible. ^^ 

10  Mass.  Rev.  Laws,  c.  152,  §  15. 

11  Adams  v.  Adams,  33  Mass.  254. 

12  Com.  V.  Snelling,  32  Mass.  321 ;  Harrington  v.  Harrington,  107  Mass. 
329;  Gardner  v.  Gardner,  68  Mass.  434. 

13  Com.  V.  Giles,  67  Mass.  466. 


[130] 


CHAP.  XXIII.] 


EVIDENCE. 


[§  237. 


CHAPTER    XXin. 


EVIDENCE. 


237.  Burden  of  proof  in  general. 

238.  Pleadings  as  evidence. 

239.  Parties  as  witnesses. 

240.  Domicil  and  residence. 

241.  On  plea  of  jurisdiction. 

242.  Presumption  in  general. 


§  243.  Evidence  of  libellee. 

244.  Corroboration. 

245.  Degree  of  proof. 

246.  Depositions. 

247.  Records  of  conviction. 

248.  Evidence  of  young  children. 


§  237.     Burden  of  proof  in  general. 

The  burden  of  proof  in  divorce  cases  is  upon  the  plaintiff. 
He  must  prove  all  the  material  allegations  of  the  libel  by  the 
best  evidence  procurable.  Nothing  will  be  assumed  by  the 
court  to  be  determined  that  is  not  actually  proved.^  In  many 
states,  before  the  court  can  grant  a  divorce  on  the  ground  of 
adultery,  it  must  affirmatively  appear  by  satisfactory  proof 
of  good  character  or  otherwise,  that  the  plaintiff  has  not  been 
guilty  of  the  same  crime.^ 


§  238.     Pleadings  as  evidence. 

Allegations  of  recrimination,  contained  in  the  pleadings  in 
cross-libels  for  divorce,  cannot  be  introduced  in  evidence  as 
admissions  of  the  facts  therein  alleged.^    Neither  can  state- 

1  Harrington  r.  Harrington,  107  Mass.  329;  German  v.  German,  57  Mich. 
256,  23  N.  W.  802;  Fischer  v.  Fischer,  18  X.  J.  Eq.  300;  Linden  v.  Linden, 
36  Barb.  (N.  Y.)  61 ;  McCulloch  v.  McCulloch,  69  Tex.  682,  7  S.  W.  593, 
5  Am.  St.  Rep.  93;  Hampton  v.  Hampton,  87  Va.  148,  12  S.  E.  340;  Gleason 
V.  Gleason,  4  Wis.  64. 

2  Dismukes  v.  Dismukes,  1  Tenn.  Ch.  266. 

3  Demelman  i'.  Burton,  176  Mass.  363,  57  N.  E.  665;  Cameron  v.  Cameron, 
2  Coldw.  (Tenn.)  375. 

[131] 


§  241.]       THE    LAW    OF   MARRIAGE    AND    DIVORCE.  [CHAP,  XXIII. 

ments  of  complainant  for  divorce  be  taken  as  true  because  of 
defendant's  failure  to  answer.^ 

§  239.    Parties  as  witnesses. 

In  some  states,  the  parties  to  a  divorce  suit  cannot  testify; 
in  other  states  their  testimony  must  be  corroborated.  They 
are  not  competent  for  the  reason  that  they  are  husband  and 
wife,  and  the  policy  of  the  law  is  not  to  allow  them  to  testify 
against  each  other  unless  permitted  by  special  statute.^  In 
suits  for  nullity  of  the  marriage  both  parties  are  competent 
to  testify,  for  the  question  to  be  determined  is  whether  they 
are  husband  and  wife.^ 

§  240.     Domicil  and  residence. 

As  the  jurisdiction  of  a  court  to  try  a  divorce  case  is  based 
on  domicil,  evidence  is  admissible  concerning  the  residence 
and  intention  of  the  parties  to  establish  a  domicil,  as  it  will 
enable  the  court  to  determine  whether  the  parties,  or  either 
of  them,  have  a  legal  domicil  in  the  state  where  such  suit  is 
brought.^ 

§  241.    On  plea  of  jurisdiction. 

Where  a  plea  to  the  jurisdiction  is  filed  by  the  defendant, 
the  plaintiff  must  prove  such  allegations  as  to  residence,  domi- 
cil, and  other  jurisdictional  facts,  as  to  establish  the  jurisdic- 
tion of  the  court.* 

*  Rie  V.  Rie,  34  Ark.  37;  Scarborough  v.  Scarborough,  54  Ark.  20,  14 
S.  W.  1028. 

5  Turpin  v.  State,  55  Md.  462;  Anonymous,  58  Miss.  15. 

6Le  Brun  v.  Le  Brun,  55  Md.  496;  Shafto  v.  Shafto,  28  N.  J.  Eq.  34; 
Greenawalt  v.  McEnelly,  85  Pa.  St.  352. 

7  Whittaker  v.  Whittaker,  151  111.  266,  37  N.  E.  1017;  Albee  v.  Albee, 
141  111.  550,  31  N.  E.  153;  Calef  v.  Calef,  54  Me.  365,  92  Am.  Dec.  549; 
Harteau  v.  Harteau,  31  Mass.  181,  25  Am.  Dec.  372. 

s  Harteau  v.  Harteau,  31  Mass.  181,  25  Am.  Dec.  372;  Schrow  v.  Schrow, 
103  Mass.  574;  De  Meli  v.  De  Meli,  120  N.  Y.  485,  24  N.  E.  996,  17  Am. 
St.  Rep.  652. 

[  132] 


CHAP.  XXIII.]  EVIDENCE.  [§  246. 

§  242.     Presumption  in  general. 

There  are  some  general  presumptions  in  the  law  of  evidence 
which  apply  to  divorce  cases,  such  as  the  presumption  of  in- 
nocence, the  presumption  of  legality  and  regularity,  and  pre- 
sumptions which  have  special  application,  such  as  arises  from 
the  relations  of  the  parties.  These  are  treated  under  the 
various  titles  elsewhere.^ 

§  243.     Evidence  of  libellee. 

The  evidence  of  the  libellee,  as  well  as  the  evidence  of  any 
other  party,  is  admissible,  but  it  is  viewed  with  the  same 
caution  displayed  towards  the  evidence  of  an  interested  party. ^° 

§  244.     Corroboration. 

Some  states  require  evidence  in  divorce  causes  to  be  corrobo- 
rated. While  there  is  no  general  rule,  aside  from  statute, 
requiring  corroboration,  courts  are  so  reluctant  to  decide  cases 
on  such  evidence,  it  amounts  to  nearly  the  same  thing,  and 
evidence  of  parties  should  be  corroborated,  when  possible. ^^ 

§  245.     Degree  of  proof. 

The  rules  governing  the  weight  and  admissibility  of  evidence 
on  the  specific  causes  for  divorce  that  may  be  alleged  in  the 
libel  are  the  rules  of  the  civil,  rather  than  the  criminal  courts, 
and  it  is  not  necessary  to  present  such  evidence  as  would  be 
competent  to  establish  guilt  in  a  criminal  court. ^^ 

§  246.     Depositions. 

The  statutes  of  most  states  provide  for  taking  the  testimony 
of  a  witness  in  a  divorce  case  by  deposition,  as  well  as  orally, 
and  also  provide  the  manner  and  form  of  taking  such  deposi- 

9  See  Validity  of  Marriage,  supra,  p.  12;  Nullity,  supra,  p.  34;  Adultery, 
supra,  p.  41. 

10  Harrington  v.  Harrington,  107  Mass.  329. 

"  Sylvis  V.  Sylvis,  11  Colo.  319,  17  Pac.  912;  Robbins  v.  Robbins,  100 
Mass.  150,  97  Am.  Dec.  91. 

12  Pittman  v.  Pittman,  72  111.  App.  500;  Carters.  Carter,  62  111.  439;  Powell 
V.  PoweU,  104  Ind.  18,  3  N.  E.  611;  Smith  v.  Smith,  5  Ore.  186. 

[133] 


§  247.]        THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXIII. 

tions.  But  if  there  are  no  such  provisions,  the  deposition  may 
be  taken  in  the  same  manner  and  subject  to  the  same  restric- 
tions as  depositions  in  other  civil  cases.^^ 

§  247.     Records  of  conviction, 

A  plea  of  guilty  to  a  charge  of  assault  and  battery,  if  fol- 
lowed by  a  conviction,  may  be  shown  by  the  record  as  a  judi- 
cial admission  of  the  fact.^^  When  the  plea  is  not  guilty  or 
nolo  contendre,  it  is  not  admissible. ^^ 

§  248.     Evidence  of  young  children. 

The  evidence  of  young  children  is  admitted  in  divorce  cases 
as  in  other  cases,  making  due  allowance  in  the  case  of  the 
children  of  the  parties  for  natural  interest  and  possible  bias, 
though  in  practice,  the  evidence  of  these  latter  is  rarely  ad- 
mitted, if  any  other  evidence  can  be  procured,  the  claim  being 
made  that  children  should  be  trained  to  have  equal  respect 
for  both  parents.^'' 

13  Whipple  V.  Whipple,  43  N.  H.  235;  BeU  v.  BeU,  9  Wkly.  Notes  of  Cases 
(Pa.),  509;  Hassett  v.  Hassett,  5  Pa.  Dist.  Ct.  604;  Richmond  v.  Richmond, 
10  Yerg.  (Tenn.)  343. 

14  Bradley  v.  Bradley,  11  Me.  367;  Burgess  v.  Burgess,  47  N.  H.  395. 

15  Bradley  v.  Bradley,  11  Me.  367. 

10  Kneale  v.  I^eale,  28  Mich.  344.     See  also  Draper  v.  Draper,  68  III.  17. 


[134] 


CHAP.  XXIV.] 


DEFENCES. 


[§  249. 


CHAPTER   XXIV. 


DEFENCES. 


249.  Collusion. 

250.  Condonation. 

251.  Revival  of  condoned  offence. 

252.  Delay  in  bringing  suit. 

253.  Recrimination. 

254.  Mistake. 


§  255.  Notice  of  grounds. 

256.  Insanity. 

257.  Drunkenness. 

258.  Provocation. 

259.  Justification  or  excuse. 

260.  Invalidity  of  marriage. 


§  249.     Collusion. 

Collusion  means  a  mutual  consent  of  the  parties  to  defraud 
or  to  impose  upon  the  court  by  agreeing  to  make  up  a  false 
case,  or  consenting  to  one  or  the  other  committing  some  act 
upon  which  an  action  could  be  founded,  and  agreeing  that 
one  or  the  other  may  get  a  divorce,  when  no  real  injury  has 
been  done  either  of  them.  If  the  court  is  satisfied  from  the 
conduct  of  the  parties  that  they  are  in  collusion  the  case  will 
be  dismissed,  for  divorces  are  granted  only  in  favor  of  the  in- 
jured and  against  the  guilty  party. ^  In  many  cases  both 
parties  are  desirous  of  the  same  thing,  namely,  a  separation, 
and  in  such  cases  the  libels  or  petitions  are  usually  uncon- 
tested and  the  temptation  to  collusion  is  great,  and  the  danger 
that  exaggerations  or  falsehoods  will  be  exposed  is  small. 
For  this  reason  the  courts  are  very  careful  to  see  that  they 
are  not  imposed  upon.^  Fraud,  however,  is  never  presumed, 
but,  if  it  appears  at  any  stage  of  the  proceedings,  the  libel  may 
be  dismissed.  To  bring  before  a  court  of  justice  an  action 
for  a  divorce  for  a  cause  which  does  not  exist,  or,  which  has 


1  Hamilton  v.  Hamilton,  89  111.  345. 

2  Wilde  V.  Wilde,  37  Xeb.  891,  56  X.  W.  724. 


[135] 


§  249.]        THE    LAW    OF    MARRIAGE    AND   DIVORCE.   [CHAP.  XXIV. 

been  brought  about  for  that  special  purpose,  is  a  gross  fraud 
upon  the  court,  and  the  parties  .render  themselves  liable  for 
contempt  of  court. ^  And  if  it  appears  that  there  has  been  any 
agreement  to  assist  or  even  to  oppose  each  other,  no  divorce 
will  be  granted. 

Collusion  is  a  defence  which  a  court  will  interpose  sua 
sponte,  where  it  is  developed.  The  law  only  permits,  ex  neces- 
sitate rei,  but  does  not  favor,  the  granting  of  divorces;  it  is  the 
policy  of  the  law  to  preserve  sacred,  the  marriage  tie;  and  it 
will  never,  knowingly,  favor  the  granting  of  a  decree  where  the 
parties  consent  to  it  without  adequate  cause,  or  where  they 
collude  together  to  secure  that  end.  Cases  have  not  been 
unknown,  among  unclean  persons,  of  conventional  committing 
of  adultery  by  one  of  the  parties  in  order  to  secure  the  divorce, 
coveted  by  both;  but  every  such  case,  if  it  could  be  estab- 
lished, would  be  denied,  or  set  aside  if  granted;  and  a  court 
would  be  applauded,  which  would  visit  with  the  utmost  rigor, 
as  for  contempt  of  court,  all  persons  who  should  trifle  with  its 
dignity  and  powers.  A  divorce  obtained  by  collusion  is  not 
only  contrary  to  public  policy,  but  it  is  an  evasion  of  justice, 
and  any  agreement,  therefore,  between  husband  and  wife,  in 
consideration  of  one  or  the  other  of  them  withdrawing  or  not 
making  any  opposition  to  a  suit  brought  by  the  other  for 
divorce  is  void,  and  this  applies  to  any  agreement  intended 
to  facilitate  the  procuring  of  a  divorce."^  And  an  agreement 
between  a  man  and  his  wife  made  the  day  after  he  had  been 
awarded  a  decree  of  divorce,  whereby  he  agrees  to  pay  her  an 
annuity  if  she  will  not  move  for  a  new  trial  is  void  as  tending 
to  facilitate  divorce.^  So  where  a  wife  agreed  not  to  sue  for 
alimony  for  a  year  the  court  held  the  contract  void.^ 

3  Smith  V.  Brown,  3  Tex.  360. 

4  Hamilton  v.  Hamilton,  89  III.  349;  Muckenburg  v.  Holler,  29  Ind. 
139;  Comstock  v.  Adams,  23  Kan.  513;  Wilde  v.  Wilde,  37  Neb.  891,  56 
N.  W.  724;  Stoutenburg  v.  Lybrand,  13  Ohio  St.  228. 

6  Blank  V.  Nohl,  112  Mo.  159,  19  S.  W.  65,  20  S.  W.  477. 
e  Evans  v.  Evans,  93  Ky.  510,  20  S.  W.  605. 

[136] 


CHAP.  XXI V\]  DEFENCES.  [§  250. 

§  250.     Condonation. 

Condonation  is  forgiveness  by  a  husband  or  wife  of  a  viola- 
tion by  the  other  of  the  marriage  vows  and  obligations,  as  of 
acts  of  adultery  or  cruelty,  with  an  implied  condition  that  the 
injury  shall  not  be  repeated.  It  is  either  express  or  implied.^ 
It  is  express  when  signified  by  words  or  writing,  and  is  im- 
plied when  it  may  be  inferred  as  a  presumption  of  law  from 
the  acts  of  the  injured  party.  It  is  always  implied  from 
cohabitation  after  the  commission  of  the  offence,  and  after 
the  complainant  has  knowledge  of  the  fact,  or  believes  it  on 
reasonable  grounds.*  In  certain  cases,  however,  the  legal 
presumption  of  the  remission  of  the  offence,  arising  from  co- 
habitation, may  be  rebutted  by  evidence,  especially  in  favor 
of  the  wife,  when  the  offence  is  less  heinous  than  infidelity,  and 
when  circumstances  render  immediate  separation  impracticable 
or  unadvisable ;  for  delay  may  be  justified  by  the  necessity  which 
compels  it,  or  by  a  laudable  desire  on  her  part  to  avoid  a  rup- 
ture of  the  family  ties  till  forbearance  ceases  to  be  a  virtue. 

Condonation  being  conditional,  the  remedy  for  the  original 
offence  is  revived  by  a  breach  of  the  condition.^  It  has  some- 
times been  said  that  the  doctrine  of  condonation  arising  from 
continued  cohabitation  was  inapplicable  to  cases  of  a  libel 
by  the  wife  seeking  a  divorce  for  extreme  cruelty.  But  the 
better  established  rule  seems  to  be  that  cruelty,  as  well  as 
adultery,  may  be  the  subject  of  condonation.^"  If  the  wife 
commits  adultery,  and  the  husband  afterwards  lives  with  her, 
a  divorce  will  not  be  granted. ^^  In  some  states  the  defence 
of  condonation  can  only  be  set  up  where  the  charge  is  adultery; 
it  does  not  apply  to  a  charge  of  cruelty.^^ 

7  Quincy  v.  Quincy,  10  X.  H.  272. 

8  Delliber  v.  Delliber,  9  Conn.  235;  Rogers  v.  Rogers,  122  Mass.  423. 

9  Harrison  v.  Harrison,  20  Ala.  629,  56  Am.  Dec.  227;  Armstrong  v.  Arm- 
strong, 27  Ind.  186. 

loCreyts  v.  Creyts,  133  Mich.,  4,  94  N.  W.  383. 

11  Thomas  v.  Thomas,  2  Coldw.  (Tenn.)  123. 

12  Steel  V.  Steel,  11  Wkly.  Notes  of  Cases  (Pa.),  21. 

[137] 


§  251.]        THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXIV. 

§  251.     Revival  of  condoned  offence. 

Condonation  is  forgiveness.  It  is  forgiveness  based  upon 
the  presumption  and  belief  that  the  guilty  party  has  repented ; 
but,  if  the  subsequent  acts  of  the  guilty  party  show  that  there 
was  no  repentance,  it  is  not  a  bar.^^  Condonation  for  any 
offence  is  a  conditional  forgiveness,  and  if  the  offence  be  re- 
peated, it  revives  the  right  of  action.^'' 

It  has  been  held  that  where  the  wife  cohabited  with  her 
husband  after  having  discovered  in  her  husband's  vest  a  re- 
ceipted bill  for  the  board  of  the  husband  and  another  woman 
at  a  hotel,  and  after  his  admission  that  he  was  present  at  the 
hotel  on  that  date,  such  cohabitation  did  not  show  condona- 
tion of  any  adultery  on  his  part,  the  husband  having  denied 
that  he  was  guilty  of  adultery,  and  the  wife  having  no  knowl- 
edge as  to  the  location  and  surroundings  of  the  rooms  to  which 
the  husband  and  the  woman  were  assigned. ^^  But  where 
condonation  is  interposed  as  a  defence  to  a  suit  for  divorce  on 
the  ground  of  adultery,  the  plaintiff  will  be  allowed  to  file  an 
amended  petition  charging  the  defendant  with  acts  of  adultery 
subsequent  to  the  alleged  condonation  and  since  the  com- 
mencement of  the  suit.  If  the  adultery  had  been  committed 
before  the  suit,  the  offence  will  be  incorporated  in  the  petition 
by  amendment,  but  if  after,  it  can  be  introduced  by  a  supple- 
mentary petition.  ^^ 

Condonation  is  a  frequent  defence.  Its  meaning  is  that 
the  offended  forgives  the  offending  party  with  full  knowledge 
of  the  delictum,  but  only  upon  condition  that  the  offence  be 

13  Turner  V.  Turner,  44  Ala.  437;  Douglass  v.  Douglass,  81  Iowa,  258,  47 
N.  W.  92;  Sewall  v.  SewaU,  122  Mass.  156,  23  Am.  Rep.  299;  Timerson  v. 
Timerson,  2  How.  Pr.  (N.  S.),  (N.  Y.)  526;  Nogees  v.  Nogees,  7  Tex.  538, 
58  Am.  Dec.  78. 

14  Hughes  V.  Hughes,  19  Ala.  307;  Williams  v.  Williams,  23  Fla.  324,  2  So. 
768;  Farnham  v.  Farnham,  73  111.  497;  Taylor  v.  Taylor,  5  N.  D.  58,  63  N.  W. 
893;  Eggarth  v.  Eggarth,  15  Ore.  626,  16  Pac.  650. 

15  Harris  v.  Harris,  82  N.  Y.  Supp.  568. 
wLutz  V.  Lutz,  52  N.  J.  Eq.  241,  28  Atl.  315. 

[  138  ] 


CHAP.  XXIV.]  DEFENCES.  [§  252. 

not  repeated.  The  most  common  case  of  condonation  is  where 
one  party  commits  adulter}-,  and  the  other  party,  fully  aware 
of  it,  cohabits,  afterwards,  with  the  offender;  this  is  condona- 
tion or  presumed  forgiveness.  No  divorce  will  be  allowed 
unless  the  delinquency  be  repeated.  Of  course  it  must  be  a 
voluntary  cohabitation;  if  obtained  through  fear  it  will  be 
futile.  Other  causes  for  divorce  as  cruelty  may  likewise  be 
condoned;  but  the  law  has  not  been  very  completely  adjudged 
in  such  cases. ^'' 

§  252.     Delay  in  bringmg:  suit. 

Many  states  have  passed  statutes  regulating  the  time  within 
which  divorces  on  certain  grounds  shall  be  brought.  In  those 
states  which  have  no  statutory  provisions  governing  the  time 
within  which  an  action  shall  be  begun,  an  unreasonable  delay 
in  bringing  the  suit  may  raise  a  presumption  of  connivance, 
collusion,  or  condonation  and  bar  the  action,  but  this  delay 
may  be  satisfactorily  explained  by  showing  that  it  was  due  to 
poverty,  or  to  avoid  scandal,  or  any  other  satisfactory  reason.^* 

Delay  to  sue  is  sometimes  set  up  as  a  defence ;  as  if  a  husband 
is  cognizant  of  and  acquiesces  in  his  wife's  adultery  for  a  long 
time;  but  cruelty,  drunkenness,  etc.,  would  not  seem  to  be 
bound  by  this  rule.  But,  in  the  absence  of  statute,  providing 
the  time  within  which  an  action  for  divorce  shall  be  brought 
upon  certain  grounds,  delay  is  not  always  a  good  defence.^^ 

§  253.     Kecrimination. 

Recrimination  is  allowable  as  a  defence,  and  will  if  sustained 
defeat  the  libel;  for  a  party  seeking  a  divorce  must  come  into 
court  with  clean  hands.^"     The  principle  on  which  this  plea 

17  Famham  r.  Farnham,  73  111.  497;  Taylor  v.  Taylor,  5  N.  D.  58,  63 
N.  W.  893. 

18  Clark  V.  Clark,  97  Mass.  331;  Derby  v.  Derby,  21  X.  J.  Eq.  57;  Hampton 
V.  Hampton,  87  Va.  148,  161,  12  S.  E.  340. 

19  Clark  V.  Clark,  97  Mass.  331;  Cummins  v.  Cummins,  15  X.  J.  Eq.  138. 
2oCumming  v.  Cumming,  135  Mass.  386;    Handy  v.  Handy,  124  Mass. 

394;  Hoffman  v.  Hoffman,  43  Mo.  547;  Hale  v.  Hale,  47  Tex.  336,  26  Am. 
Rep.   294. 

[139] 


§253.]  THE   LAW  OF  MARRIAGE   AND   DIVORCE.    [CHAP.  XXIV. 

of  compensatio  criminis  is  allowed  is,  that  a  party  cannot  justly 
complain  of  the  breach  of  a  contract  which  he  has  himself 
violated.^^  This  plea  may  be  sustained  on  evidence  not  as 
strong  as  might  be  necessary  to  sustain  a  suit  for  adultery ;  and 
it  makes  no  difference  whether  the  offence,  pleaded  by  way  of 
compensation,  were  committed  before  or  after  the  fact  charged 
in  the  libel.  It  has  been  questioned  whether  a  single  act  of 
adultery  is  sufficient  to  support  this  plea  against  a  series  of 
adulteries  proved  on  the  other  side;  but  the  better  opinion 
seems  to  be  that  it  is.  In  order  to  plead  recrimination  it  must 
be  specifically  and  fully  set  forth  in  the  answer, ^^  If  the  plain- 
tiff is  guilty  of  desertion,  he  is  not  entitled  to  a  divorce  for  the 
defendant's  adultery. ^^  If  both  parties  have  committed  adul- 
tery, no  decree  will  be  granted.''*  Recrimination  as  a  bar  to 
divorce  is  not  limited  to  a  charge  of  the  same  nature  as  that 
alleged  in  the  libel.^^ 

Recrimination  is  one  of  the  most  frequent  defences.  It  may 
be  defined  as  a  committal  by  the  complainant  of  acts  which 
afford  sufficient  ground  for  divorce.  Thus,  if  the  complainant 
seeks  a  divorce  on  the  ground  of  adultery,  proof  of  adultery 
on  his  part,  even  if  it  be  of  a  single  act,  will  be  an  efficient 
defence;  nor  does  it  make  any  difference  which  was  the  first 
offence,  nor  how  great  a  degree  of  guilt  exists  on  the  part  of 
defendant,  nor  can  a  complainant,  if  guilty  of  adultery,  obtain 
a  divorce  for  any  cause  whatever  if  recrimination  be  pleaded 
and  proved.  While  the  above  is  clear  and  emphatic,  the  law 
with  regard  to  recriminating  offences  other  than  adultery  is 

21  Bast  V.  Bast,  82  111.  584;  Ristine  v.  Ristine,  4  Rawle  (Pa.),  460. 

22  Jones  V.  Jones,  18  N.  J.  Eq.  33,  90  Am.  Dec.  607;  Smith  v.  Smith,  4 
Paige  (N.  Y.),  432,  27  Am.  Dec.  75. 

23  Johnson  V.  Johnson,  (Tex.)  23  S.  W.  1022;  Pierce  v.  Pierce,  70  Vt.  270. 
40  Atl.  728.  Contra,  Huling  v.  Huling,  38  111.  App.  144;  Bast  v.  Bast,  82 
111.  584. 

24Clapp  V.  Clapp,  97  Mass.  531.  See  also  Gumming  v.  Gumming,  135 
Mass.  386. 

25  Handy  v.  Handy,   124  Mass.  394;  Lyster  v.  Lyster,  111  Mass.  327; 
Clapp  V.  Glapp,  97  Mass.  531;  Hall  v.  Hall,  86  Mass.  39. 
[140] 


CHAP.  XXIV.]  DEFENCES.  [§  253. 

not  so  prominently  put  forth  by  courts.  It  is,  however,  the 
accepted  doctrine  by  lawyers  that  recrimination  may  also 
apply  to  other  offences  against  the  marital  relation  than 
adultery.  In  Conant  v.  Conant,^^  the  court  said,  "In  this 
state,  the  statute  has  specified  certain  acts  or  conduct  which 
shall  constitute  grounds  of  divorce,  and  so  far  as  the  matri- 
monial contract  is  concerned,  the  courts  cannot  distinguish 
between  them,  whatever  difference  there  may  be  in  a  moral 
point  of  view.  The  several  offences,  therefore,  must  be  held 
equally  pleadable  in  bar  to  the  suit  for  divorce — the  one  to 
the  other,  within  the  principle  of  the  doctrine  of  recrimination." 
So  in  the  case  of  Halei;.  Hale,^^  the  court  would  not  say,  "  that 
in  no  case,  and  under  no  state  of  circumstances  should  a  di- 
vorce be  granted,  if  the  plaintiff  is  also  guilty  of  an  act  of  any 
character  for  which  the  defendant  might  claim  a  divorce. 
There  are  unquestionably  well-established  limitations  in  re- 
gard to  this  character  of  defence  in  such  actions,  to  which 
however  it  is  unnecessary  for  us  to  specially  advert  at  present. 
The  general  doctrine,  that  recrimination  is  a  valid  defence, 
though  the  divorce  is  sought  upon  other  grounds  than  adultery 
may,  nevertheless,  be  said,  on  the  very  highest  authority,  to 
rest  in  the  clearest  reason  and  exact  justice."  So  in  Massa- 
chusetts, a  sentence  to  five  years'  imprisonment  and  adultery 
being  equal  grounds  for  dissolving  the  marriage,  one  sen- 
tenced to  such  imprisonment  cannot  have  a  divorce  for  the 
other's  adultery.  The  two  offences  were  held  to  be  of  the 
same  class  and  degree.^* 

Upon  a  libel  for  divorce  for  the  cause  of  adultery,  if  the 
respondent  would  show  a  like  crime  committed  by  the  Irbel- 
lant,  to  prevent  the  divorce,  he  must  plead  it,  or  he  will  not 
be  permitted  to  give  it  in  evidence.^^ 

26  Conant  v.  Conant,  10  Cal.  249,  256,  70  Am.  Dec.  717. 

27  Hale  V.  Hale,  47  Tex.  336,  342,  26  Am.  Rep.  294. 

28  Handy  v.  Handy,  124  Mass.  394. 

29  Pastoret  v.  Pastoret,  6  Mass.  276. 

[141] 


§  256.]        THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXIV. 
§  254.     Mistake. 

Mistake  to  be  a  defence  to  a  divorce  must  be  a  bona  fide 
mistake  as  to  some  material  matter  of  fact,  and  not  a  mistake 
as  to  legal  rights  as  a  question  of  law.  If  one  acts  in  a  certain 
manner,  believing  he  has  a  right  under  the  law  so  to  act,  it  is 
no  defence,  but  if  one  acts  under  the  honest  belief  that  certain 
legal  requirements  are  complied  with,  when,  as  a  matter  of 
fact,  they  are  not,  it  may  be  a  defence.^"  In  Massachusetts, 
under  a  decree  nisi  which  became  absolute  in  six  months  "un- 
less sufficient  cause  to  the  contrary  appears,"  the  libellee  be- 
lieving he  had  a  right  to  marry  did  so,  and  it  was  held  the 
decree  could  not  be  made  absolute.^^  But  when  the  libellant 
was  led  to  believe  that  a  decree  had  been  entered  as  a  fact,  the 
decree  was  made  absolute.^^ 

§  255.     Notice  of  grounds. 

Where  the  libellant  can  be  shown  to  have  had  such  knowl- 
edge of  the  habits,  disposition,  or  other  matters  relating  to  the 
libellee,  he  or  she  is  presumed  to  have  had  notice  of  these  facts, 
and  to  have  entered  the  married  state  with  such  knowledge 
and  notice,  and  the  court  will  refuse  to  grant  a  decree  of 
divorce.^^  ^ 

§  256.    Insanity. 

The  general  rule  regarding  insanity  as  a  defence  is  that  no  acts 
or  omissions  committed  by  an  insane  person  can  be  grounds 
for  a  divorce,  unless  such  acts  were  performed  while  the  de- 
fendant was  in  a  lucid  interval,  and  it  is  generally  held  that 
the  burden  of  proof  will  be  on  the  libellant  to  show  lucidity.^^ 

30  Moors  V.  Moors,  121  Mass.  232;  Pierce  v.  Pierce,  160  Mass.  216,  35 
N.  E.  462;  Pratt  v.  Pratt,  157  Mass.  503,  32  N.  E.  747,  21  L.  R.  A.  97  and 
note. 

31  Moors  V.  Moors,  121  Mass.  232. 

32  Pratt  V.  Pratt,  157  Mass.  503,  32  N.  E.  747,  21  L.  R.  A.  97  and  note. 

33  Heintzman  v.  Heintzman,  15  Pa.  Co.  Ct.  669. 

34  Cohn  V.  Cohn,  85  Cal.  108,  24  Pac.  659;  Wertz  v.  Wertz,  43  Iowa,  534; 
Tiffany  v.  Tiffany,  84  Iowa,  122,  50  N.  W.  554;  PoweU  v.  PoweU,  18  Kan. 
371,  26  Am.  Rep.  774;  Hansel  v.  Hansel,  15  Pa.  Co.  Ct.  514. 

[142] 


CHAP.  XXIV.]  DEFENCES.  [§  257. 

But  the  libellee  must  be  insane  and  incapable  of  distinguish- 
ing between  right  and  wrong  and  not  merely  afflicted  with  a 
slight  mental  derangement  or  depravity  of  character.^^ 

§  257.     Drunkenness. 

The  court  may  declare  a  marriage  void  on  the  ground  of  the 
party's  intoxication  at  the  time  of  the  celebration,  if  it  was 
not  afterwards  consummated  by  cohabitation.^^ 

§  258.     Provocation. 

It  may  be  shown  by  way  of  defence  that  the  acts  of  the 
libellee  were  due  to,  or  incited  by,  the  provoking  acts  of  the 
libellant,  and  if  this  is  proved  a  divorce  will  not  be  granted. 
The  degree  of  provocation  must  be  much  stronger  than  the 
offence  charged  to  constitute  a  defence.^'  Provocation  to  be 
a  defence  must  be  greatly  in  excess  of  the  acts  committed  by 
the  libellee.^*  It  must  not  be  merely  a  display  of  temper, 
passion,  or  abuse.^*  A  divorce  is  not  a  salve  to  the  lover  of 
a  domestic  fight.**" 

§  259.     Justification  or  excuse. 

A  wife  is  not  justified  in  refusing  to  leave  comfortable  sur- 
roundings at  the  request  of  her  husband  to  come  to  live  with 
him,  although  at  the  time  he  had  no  house  to  take  her  to.^^ 

35  HiU  V.  HiU,  27  X.  J.  Eq.  214;  Nichols  v.  Nichols,  31  Vt.  328,  73  Am. 
Dec.  352.     See  also  Insanity,  supra,  p.  142. 

36  Selah  V.  Selah,  23  N.  J.  Eq.  185. 

37  Johnson  v.  Johnson,  14  Cal.  459;  Owen  v.  Owen,  90  Iowa,  365,  57  N. 
W.  887;  Knight  v.  Knight,  31  Iowa,  451;  Durand  v.  Her  Husband,  4  Mart. 
(La.)  174;  Skolfield  v.  Skolfield,  86  Me.  31,  29  Atl.  925;  German  r.  German, 
57  Mich.  256,  23  X.  W.  802;  Harper  v.  Harper,  29  Mo.  301. 

38  King  I'.  King,  28  Ala.  315;  Eidenmuller  v.  EidenmuUer,  37  Cal.  364; 
Richards  v.  Richards,  37  Pa.  St.  225. 

39Ashton  V.  Gruker,  48  La.  Ann.  1194,  20  So.  738;  Albert  v.  Albert,  5 
Mont.  577,  6  Pac.  23,  51  Am.  Rep.  86;  Boeck  r.  Boeck,  16  Xeb.  196,  20 
X.  W.  223. 

40  Durand  v.  Her  Husband,  4  Mart.  (La.)  174;  McCahUl  v.  McCahill, 
71  Hun  (X.  Y.),  224. 

41  Messenger  v.  Messenger,  56  Mo.  329. 

[143] 


§  260.]      THE    LAW    OF    MARRIAGE    AND    DIVORCE.     [CHAP.  XXIV. 

The  wife's  fear  that  she  will  have  too  many  children  is  no 
justification  for  leaving  her  husband  aild  living  apart.  So 
mere  grossness  or  rudeness  of  manner  will  not  justify  a  de- 
sertion.'*^ 

It  is  no  justification  for  desertion  by  the  wife  that  she  left 
the  husband  because  his  intercourse  with  her  was  very  fre- 
quent, when  there  is  no  pretence  of  any  peculiar  debility  or 
physical  infirmity  on  her  part."*^  The  fact  that  the  husband 
is  accused  of  crime  or  is  guilty  of  it,  or  that  his  failure  to 
provide  for  her  is  due  to  a  crime,  is  no  justification  for  deser- 
tion, as  she  took  him  "for  better  or  worse."  ''^  A  wife  is  not 
justified  in  leaving  her  husband  because  he  invites  members 
of  his  family  to  live  in  the  house.''^  A  husband  is  not  justified 
in  deserting  his  wife  because  she  refused  him  marital  inter- 
course.^® Refusal  to  allow  a  wife  to  attend  a  church  of  which 
she  is  a  member  is  not  justification  for  leaving  him.''^  Mis- 
conduct may  be  a  justification  for  acts  of  cruelty.'** 

§  260.     Invalidity  of  marriage. 

A  divorce  from  the  bonds  of  matrimony  will  not  be  decreed 
until  a  legal  and  valid  marriage  is  proved,  and  the  invalidity 
of  the  marriage  of  the  parties  to  the  suit  may  be  set  up  as  a 
defence."*^ 

42  I,eavitt  V  Jt-^1att,  Wright,  (Ohio)  719;  Bryan  v.  Bryan,  34  Ala.  516. 

43  MoocgtfJ^Moores,  16  N.  J.  Eq.  275. 
44.Foy'v.  Foy,  35  N.  C.  90;  Hammond  v.  Hammond,  15  R.  I.  40,  23  Atl. 

"^'143,  2  Am.  St.  Rep.  867. 

45  Jones  V.  Jones,  55  Mo.  App.  523. 
46Reid  V.  Reid,  21  N.  J.  Eq.  331. 

47  Lawrence  v.  Lawrence,  3  Paige  (N.  Y.),  267. 

48  Powers  V.  Powers,  82  N.  Y.  Supp.  1022. 

49  Mangue  v.  Mangue,  1  Mass.  240;  Finn  v.  Finn,  62  How,  Pr.  (N.  Y.)  83. 


[144] 


CHAP.  XXV.] 


DECREES. 


[§26i 


CHAPTER    XXV. 


DECREES. 


261.  Dismissal  of  libel. 

262.  General  dismissal   as  bar  to 

subsequent  libel. 

263.  Dismissal  without  prejudice. 

264.  Decree  of  nullity. 

265.  Decree  of  affirmation. 

266.  Decree  a  vinculo  matrimonii. 

267.  Decree  nisi. 


268.  Decree  a  mensa  et  thoro. 

269.  Divorced    woman's    right    to 

resume   her   maiden   name 
or  name  of  former  husband. 

270.  Separate  support  and  main- 

tenance. 

271.  Restrictions  against  marrying 

after  divorce. 


§  261.     Dismissal  of  libel. 

Where  the  court  has  jurisdiction  of  the  parties  and  subject- 
matter,  it  may  dismiss  the  hbel  before  a  hearing  for  any  cause 
in  its  discretion,  such  as  failure  to  prosecute,  a  resumption  of 
cohabitation,  or  condonation,  or  an  agreement  between  the 
parties  to  end  the  suit;  or,  after  a  hearing,  when  a  good  de- 
fence has  been  shown,  such  as  collusion  or  recrimmation,  and 
such  dismissal  will  be  a  bar  to  future  actions  upon  a  cause 
known  at  the  time  of  bringing  the  libel, ^ 

§  262,     General  dismissal  as  bar  to  subsequent  libel. 

The  general  dismissal  of  a  libel  for  insufficiency  of  proof 
will  bar  a  subsequent  libel. ^  But  if  new  evidence  has  been 
discovered,  or  there  has  arisen  any  new  ground  for  a  libel, 
such  a  dismissal  is  not  a  bar,* 


1  Fera  v.  Fera,  98  Mass.  155;  Thurston  v.  Thurston,  99  Mass.  39;  Bartlett 
V.  Bartlett,  113  Mass.  312,  18  Am.  Rep.  493;  Lewis  v.  Lewis,  106  Mass.  309; 
Hood  V.  Hood,  110  Mass.  463;  Wagner  v.  Wagner,  36  Mum.  239,  30  N.  W.  766, 

2  Bartlett  r.  Bartlett,  113  Mass.  312,  18  Am.  Rep.  493. 

3  Morrison  v.  Morrison,  142  Mass.  361,  8  N,  E.  59,  56  Am.  Rep.  688; 
Edgerly  v.  Edgerly,  112  Mass.  53, 

10  [  145  ] 


§  266.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXV 

§  263.    Dismissal  without  prejudice. 

Sometimes,  for  errors  in  the  pleadings,  lack  of  evidence,  or 
other  cause,  libels  are  dismissed  without  the  merits  being 
heard  and  determined,  or  there  being  any  adjudication  of  the 
issues  involved.  Such  a  dismissal  is  called  a  'Vlismissal  with- 
out prejudice,"  and  it  is  not  a  bar  to  a  future  libel  for  the  same 
cause,  as  the  facts  have  never  been  determined.'* 

§  264.     Decree  of  nullity. 

A  decree  of  nullity  declares  the  marriage  alleged  to  have 
been  contracted  to  be  null  and  void.  In  other  words,  the  fact 
that  no  marriage  ever  took  place  is  judicially  determined.^ 

§  265.     Decree  of  affirmation. 

Where  the  validity  of  a  marriage  is  in  question,  and  the  mar- 
riage is  declared  valid,  a  decree  of  affirmation  is  entered  as 
an  adjudication  of  its  validity.^ 

§  266.     Decree  a  vinculo  matrimonii. 

A  decree  of  absolute  divorce  from  the  bonds  of  matrimony 
is  a  full  and  complete  dissolution  of  the  marriage  tie,  abrogat- 
ing all  marital  rights  and  obligations,  and  leaving  both  parties 
free  to  marry  again. '^  The  marriage  tie  having  been  legally 
severed,  husband  and  wife  are  to  all  intents  and  purposes  as 
strangers  to  each  other,  and  if  they  afterwards  have  sexual 
intercourse,  they  are  guilty  of  fornication  or  adultery.  Prop- 
erty rights  are  restored  to  the  parties  as  they  existed  at  the 
time  of  the  marriage  as  far  as  practicable,  and  a  decree  of  di- 
vorce does  not  affect  any  transfer  of  property  made  during 
coverture  by  the  parties,  but  it  forever  bars  dower  and  cur- 
tesy, or  any  future  interest  in  the  other's  estate.*    A  divorce 

4  Ashmead  v.  Ashmead,  23  Kan.  262. 

6  See  Form  No.  41,  p.  380. 
«  See  Form  No.  41c,  p.  382 

7  Whitsell  V.  Mills,  6  Ind.  231 ;  McCraney  v.  McCraney,  5  Iowa,  232,  68 
Am.  Dec.  702;  Barber  v.  Root,  10  Mass.  260;  Hunt  v.  Thompson,  61  Mo.  148. 

8  Starr  v.  Pease,  8  Conn.  541 ;  Clark  v.  Slaughter  38  Miss.  64. 

[  146  ] 


CHAP.  XXV.]  DECREES.  [§267. 

from  the  bonds  of  matrimony  will  not  be  decreed  unless  a 
legal  marriage  be  proved.^ 

§  267.     Decree  nisi. 

In  some  states,  in  the  first  instance,  a  decree  nisi  is  entered, 
which  allows  a  certain  time  to  elapse  before  the  decree  is  made 
absolute,  at  the  end  of  which  time  it  may  become  absolute, 
unless  in  the  meantime  good  cause  is  shown  why  the  decree 
should  not  be  made  absolute.  Only  parties  interested  can 
appear  and  show  cause.  ^°  If,  at  any  time  before  the  decree 
nisi  is  made  absolute,  the  parties  live  together  again,  the  decree 
will  be  void.  A  decree  nisi  does  not  absolutely  dissolve  the 
marriage." 

§  268.     Decree  a  mensa  et  thoro. 

A  decree  from  bed  and  board  is  not  a  dissolution  of  the 
marriage  tie  and  the  parties  may  mutually  and  voluntarily 
apply  to  rescind  the  decree.  Until  the  decree  is  rescinded, 
there  is  complete  separation  from  bed  and  board  and  aU  rights 
of  cohabitation. ^2  The  parties  are  still  regarded  as  husband 
and  wife.^^ 

§  269.  Divorced  woman's  right  to  resume  lier  maiden  name  or 
name  of  former  husband. 
Most  courts  are  authorized  by  statute,  in  granting  a  divorce 
to  a  woman,  to  allow  her  to  resume  her  maiden  name  or  that 
of  a  former  husband,  if  she  prays  for  it  in  her  petition.  If 
there  are  no  children  born  of  the  union,  the  court  usually 
allows  her  prayer,  but  if  there  are  children  the  court  rarely 
allows  her  to  resume  her  former  name.  In  South  Carolina, 
where  there  is  no  power  to  grant  a  divorce,  the  court  refused 

"  Mangue  v.  Mangue,  1  Mass.  240. 

10  Fox  V.  Davis,  113  Mass.  255,  18  Am.  Rep.  476;  Sparhawk  v.  Sparhawk, 
114  Mass.  355. 

"  Ames  V.  Chew,  46  Mass.  320;  Dean  v.  Richmond,  22  Mass.  461. 

12  Pierce  v.  Bumham,  45  Mass.  303. 

13  Ellison  V.  MobUe,  53  Ala.  558. 

[147] 


§271.]         THE    LAW    OF    MARRIAGE    AND    DIVORCE.   [CHAP.  XXV. 

to  change  the  name  of  the  wife  without  the  consent  of  the 
husband.^"*  But  at  common  law  she  may  assume  her  maiden 
name  or  any  other  name  which  does  not  interfere  with  the 
rights  of  others.^^ 

§  270.     Separate  support  and  maintenance. 

In  some  states,  where  a  wife  is  living  apart  from  her  hus- 
band for  just  cause,  she  may  petition  the  court  for  separate 
support  and  maintenance.^^ 

§  271.     Restrictions  against  marrying  after  divorce. 

Some  states  have  passed  statutes  prohibiting  the  guilty 
party  from  contracting  a  second  marriage  after  a  divorce;  in 
others  the  guilty  party  cannot  contract  a  second  marriage  for 
a  limited  time ;  in  others  not  without  permission  from  the  court. 
But  these  restrictions  have  no  extraterritorial  effect,  for  it  is 
a  well-established  principle  of  law  that  a  divorce  that  releases 
one  party  from  the  marriage  must  free  the  other.  There  can- 
not be  a  husband  without  a  wife  or  a  wife  without  a  husband, 
and  the  courts  have  held  almost  unanimously  that  the  party 
contracting  the  second  marriage  cannot  be  punished  for 
bigamy." 

"  Converse  v.  Converse,  9  Rich.  Eq.  (S.  C.  )535. 

15  Clark  V.  Clark,  19  Kan.  522;  Linton  v.  Bank,  10  Fed.  894. 

10  See  divorce  laws  of  the  several  states,  infra,  p.  233. 

17  State  V.  Weatherby,  43  Me.  258,  69  Am.  Dec.  59;  Van  Voorhis  v.  Brint- 
nald,  86  N.  Y.  18,  40  Am.  Rep.  505;  People  v.  Hovey,  5  Barb.  (N.  Y.)  117; 
Dickson  v.  Dickson,  1  Yerg.  (Tenn.)  110,  24  Am.  Dec.  444. 


[148] 


CHAP.  XXVI.] 


ALIMONY. 


[§  272. 


CHAPTER    XXVI. 


ALIMONY. 

272 

In  genera- 

§  297 

273 

Duty  of  husband  to  support 

298 

wife. 

299 

274 

Marriage    as    pre-requisite. 

300 

275. 

Alimony    is    allowed    in    all 
states. 

301 

276. 

Manner  of  awarding  alimony. 

302 

277. 

Discretion  of  court. 

278. 

Permanent  alimony. 

303. 

279. 

Alimony  pendente  lite. 

304. 

280. 

Alimony  in  nullity  suits. 

281. 

Alimony  under  common-law 

305. 

marriage. 

306. 

282. 

Counsel  fees. 

307. 

283. 

Liability  of  husband  and  wife 

for  legal  services  to  wife  in 

308. 

tiivorce  suit. 

284. 

Alimony  allowed  without  di- 

309. 

vorce  proceedings. 

310. 

285. 

Liability  of  non-resident  de- 
fendant. 

311. 

286. 

Husband's  right  to  alimony. 

312. 

287. 

Prayer  for  alimony. 

313. 

288. 

Attachment    of    husband's 
property. 

289. 

How     attachment     may     be 
made. 

290. 

Husband's  income. 

291. 

Husband's  ability. 

292. 

Conduct   of  parties. 

293. 

Both  parties  at  fault. 

294. 

Wife  at  fault. 

295. 

Separation  by  mutual  agree- 
ment. 

296. 

Husband  living  in  adultery. 

Abandonment  of  wife. 

Cruelty  to  wife. 

Husband's  resources. 

Condition  of  family. 

Necessity  of  separation  of 
parties. 

Previous  provision  for  wife's 
support. 

Alimony  pending  appeal. 

Husband's  denial  under  oath 
of  grounds  of  divorce. 

Wife's  property  or  income. 

Allowance  of  gross  sum. 

Wife  as  creditor  after  decree 
for  alimony. 

Requiring  husband  to  dis- 
close on  oath. 

Reference  to  master. 

Reference  to  arbitrator. 

Surety  for  payment  of  ali- 
mony. 

Decree  of  alimony  as  lien. 

Enforcement  of  decree  for 
alimony. 

(a)  Making  decree  a  lien  on 
real  estate. 

(6)  Issuance   of   attachment. 

(c)  Issuance  of  execution. 

{d)  Appointment  of  receiver. 

(e)  Requirement  of  security. 

(/)  Issuance  of  injunction. 

{g)  Issuance  of  writ  of  ne 
exeat. 

(h)  Imprisonment  for  con- 
tempt. 

[149] 


§  274.]  THE  LAW  OF  MARRIAGE  AND   DIVORCE.  [CHAP.  XXVI. 


§  314.  Successive  executions. 

315.  Oath  for  poor  debtors. 

316.  Appointment    of    trustee    of 

wife's  property. 

317.  Modification    of    decree    for 

alimony. 

318.  Termination  of  alimony. 


§  319.  Reconciliation. 

320.  Effect    of   wife's   subsequent 

adultery  upon   alimony. 

321.  Nature  of  contempt  proceed- 

ings to  compel  payment  of 
alimony. 
321a.  Sister  state  may  enforce  pay- 
ment. 


§  272.     In  general. 

Alimony  is  an  allowance  paid  to- the  wife  out  of  her  husband's 
estate  or  income.  Alimony  is  allowed  where  absolute  or 
partial  divorces  are  granted.  As  a  wife  is  compelled  to  share 
her  husband's  adversity,  she  is  also  entitled  to  share  his 
prosperity.  The  alimony  to  which  she  is  entitled  should 
correspond  to  the  degree  of  his  wealth  and  position.  No 
man  is  required  to  provide  for  his  wife  in  a  manner  inconsis- 
ent  with  his  or  her  surroundings,  or  better  than  he  can  provide 
for  himself.  As  a  general  rule,  alimony  is  the  outcome  of  a 
suit  for  divorce  and  will  be  allowed  only  after  the  libel  has 
been  filed  in  court. ^  Alimony  is  an  incident  of  marriage,  a 
maintenance  afforded  to  the  wife  where  the  husband  refuses 
to  give  it.^ 

§  273.    Duty  of  husband  to  support  wife. 

It  is  the  duty  of  the  husband  to  provide  a  comfortable  sup- 
port for  his  wife,  according  to  his  ability  and  circmnstances 
in  life,  and  if,  by  his  wrongful  acts,  he  forces  his  wife  to  take 
legal  action  against  him,  or  he  leaves  her  without  just  cause, 
the  law  will  recognize  her  right  of  support  and  maintenance, 
and  will  make  provision  for  her  out  of  his  income  or  estate. 
This  allowance  is  called  alimony  and  is  decreed  by  order  of 
the  court  upon  petition  of  the  wife.^ 

§  274.     Marriage  as  pre-requisite. 

As  a  valid  marriage  and  a  breach  of  the  duties  imposed  by 

1  Bowman  v.  Worthington,  24  Ark.  522;  Foss  v.  Foss,  2  111.  App.  411. 

2  Keerl  v.  Keerl,  34  Md.  21. 

8  Mussing  V.  Mussing,  104  111.  126;  Francis  v.  Francis,  31  Gratt.  (Va.)  283; 
Pauly  V.  Pauly,  69  Wis.  419,  34  N.  W.  512. 

[150] 


CHAP.  XXVI.]  ALIMONY.  [§  275. 

such  marriage  are  the  \'ery  ground  for  alimony,  a  marriage  will 
have  to  be  admitted  or  proved  before  alimony  can  be  de- 
creed.'* 

§  275.     Alimony  is  allowed  in  all  states. 

The  statutes  of  many  states  make  special  mention  of  ali- 
mony, and  in  states  where  the  divorce  statute  is  silent  upon 
the  subject  of  alimony,  it  has  been  held  that  the  court,  in 
granting  a  divorce,  can  decree  alimony  to  the  wife.^ 

§  276.     Manner  of  awarding  alimony. 

Alimony  is  allowed  by  the  court  upon  the  petition  of  the 
wife.® 


§  277.     Discretion  of  court. 

The  court  has  great  discretion  in  awarding  alimony.^  In- 
deed in  a  cause  of  divorce,  the  question  of  the  amount  to  be 
awarded  as  alimony  is  entirely  within  the  discretion  of  the 
court,  having  regard  to  the  conduct  of  both  parties,  the  amount 
of  property  of  each,  and  all  the  other  circumstances  of  the 
case.*    It  may  date  back  to  the  commencement  of  the  suit.* 

§  278.     Permanent  alimony. 

Permanent  alimony  is  alimony  allowed  after  the  trial,  and 
is  measured  according  to  the  husband's  ability,  the  social 
standing  of  the  parties,  and  the  needs  of  the  wife  and  children, 

*  Cowan  V.  Cowan,  10  Colo.  540,  16  Pac.  215;  Roseberry  v.  Roseberry, 
17  Ga.  139;  Collins  v.  Collins,  80  N.  Y.  1;  Bardin  v.  Bardin,  4  S.  D.  305, 
56  N.  W.  1069;  Shaw  v.  Shaw,  61  N.  W.  (Iowa)  368. 

5  Chaires  v.  Chaires,  10  Fla.  308;  Griffin  v.  Griffin,  47  N.  Y.  134. 

6  Chase  v.  Chase,  55  Me.  21 ;  Francis  v.  Francis,  31  Gratt.  (Va.)  283. 

7  Collins  V.  Collins,  71  3^.  Y.  269. 

8  White  V.  White,  73  Cal.  105,  14  Pac.  393;  Ressor  v.  Ressor,  82  111.  442; 
Graves  v.  Graves,  108  Mass.  314;  Potts  v.  Potts,  68  Mich.  492,  36  N.  W.  240; 
Worden  v.  Worden,  3  Edw.  Ch.  (X.  Y.)  387. 

■  Swearingen  v.  Swearingen,  19  Ga.  265;  Russell  v.  Russell,  69  Me.  336. 

[151] 


§  280.]       THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVI. 

though  other  matters  may  be  taken  into  consideration,  such 
as  the  wife's  separate  income  or  estate.^" 

§  279.     Alimony  pendente  lite. 

The  court  may  require  the  husband  to  pay  into  court,  for 
the  use  of  the  wife  during  the  pendency  of  the  hbel,  such  sum 
of  money,  although  exceeding  the  taxable  costs,  as  may 
enable  her  to  maintain  or  defend  the  libel;  and  the  wife  may 
also,  when  it  appears  to  be  just  and  equitable,  be  entitled  to 
alimony  during  the  pendency  of  the  libel. ^^  Such  order  may 
be  enforced  by  execution  and  proceedings  as  in  cases  of  con- 
tempt. The  amount  which  the  court  will  require  of  a  hus- 
band, to  enable  his  wife  to  maintain  or  defend  a  libel  for 
divorce,  is  not  to  exceed  a  reasonable  amount  for  compensa- 
tion of  counsel  and  other  expenses,  under  all  the  circum- 
stances of  the  case,  without  regard  to  the  amount  that  might 
properly  be  charged  between  counsel  and  client  by  counsel 
actually  employed. ^^  Alimony  ^pendente  lite,  or  temporary 
alimony  as  it  is  sometimes  called,  is  alimony  awarded  pending 
the  suit.^^  The  presumption  of  the  wife's  innocence  entitles 
her  to  temporary  support  and  counsel  fees  whether  she  is  the 
plaintiff  or  defendant. ^^  Alimony  pending  the  suit  should 
not  be  asked  for  before  the  libellee  has  been  summoned.^^ 

§  280.     Alimony  in  nullity  suits. 

In  nullity  causes  marriage  is  the  only  question  involved, 
and,  as  alimony  depends  on  marriage,  it  should  not  be  allowed 
when  the  marriage  itself  is  in  dispute.     After  a  final  decree 

10  Bowman  v.  Worthington,  24  Ark.  522;  Burrows  v.  Purple,  107  Mass. 
428;  Sparhawk  v.  Sparhawk,  120  Mass.  390;  Sheaf e  v.  Sheaf e,  24  N.  H.  564. 

iiHechtv.  Hecht,  28  Ark.  92;  Countz  v.  Countz,  30  Ark.  73;  Glenn  v. 
Glenn,  44  Ark.  46. 

12  Baldwin  v.  Baldwin,  72  Mass.  341;  Tayman  v.  Tayman,  2  Md.  Ch.  393. 

13  Bowman  v.  Worthington,  24  Ark.  522. 

14  Coles  V.  Coles,  2  Md.  Ch.  341. 

15  Daiger  v.  Daiger,  2  Md.  Ch.  335;  Weishaupt  v.  Weishaupt,  27  Wis.  621. 

[152] 


CHAP.  XXVI.]  ALIMONY.  [§  281. 

of  nullity,  an  award  of  alimony  is  improper  by  a  majority  of 
the  decisions. ^^ 

§  281.     Alimony  under  common-law  marriage. 

Proof  of  a  common-law  marriage  has  been  held  sufficient 
to  decree  alimony. ^^ 

§  282.     Counsel  fees. 

The  court  may  allow  the  wife,  on  her  motion  or  petition, 
a  reasonable  allowance  out  of  the  husband's  income  for  the 
payment  of  her  counsel  fees  in  her  suit  for  divorce,  the  amount 
awarded  depending  upon  the  husband's  ability  to  pay.^*  The 
court  has  the  power  to  compel  the  husband  to  pay  a  proper 
fee  for  retaining  counsel  to  aid  the  wife  in  prosecuting  her 
bill  for  divorce  and  alimony. ^^ 

§  283.     Liability  of  husband  and  wife  for  legal  services  to  wife  in 
divorce  suit. 

A  married  woman  may  make  herself  chargeable  with  the 
value  of  services  rendered  upon  her  employment  of  counsel 
to  secure  a  divorce  from  her  husband,  although  the  suit  is 
discontinued.  Upon  the  question  of  the  husband's  liability 
for  the  costs  and  expenses  of  the  wife  in  divorce  proceedings, 
the  courts  cannot  be  said  to  be  unanimous.  In  some  cases 
where  he  is  held  liable,  his  responsibility  is  placed  upon  the 
ground  of  an  implied  promise  arising  out  of  the  wife's  power 
to  bind  the  husband  as  his  agent,  and  upon  the  ground  that 

16  See  Frith  v.  Frith,  18  Ga.  273;  Browii  v.  Westbrook,  27  Ga.  102;  Chase 
V.  Chase,  55  Me.  21 ;  Bloodgood  v.  Bloodgood,  59  How.  Pr.  (X.  Y.)  42. 

"  Bo\\Tnan  v.  Bowman,  24  111.  App.  165;  Brinkley  v.  Brinkley,  50  N.  Y. 
184,  10  Am.  Rep.  460;  Smith  v.  Smith,  1  Edw.  Ch.  (X.  Y.)  255. 

18  Creamer  v.  Creamer,  .36  Ga.  618;  Petrie  v.  People,  40  111.  334;  Tajmian  v. 
Tayman,  2  Md.  Ch.  393;  McCurley  v.  McCurley,  60  Md.  185,  45  Am.  Rep.  717; 
Kendall  v.  Kendall,  1  Barb.  Ch.  (X.  Y.)  610;  Smith  v.  Smith,  3  Ore.  363; 
Waldron  v.  Waldron,  55  Pa.  St.  231;  Thompson  v.  Thompson,  3  Head 
(Tenn.),  527. 

19  Baldwin  v.  Baldwin,  72  Mass.  341 ;  Ricketts  v.  Ricketts,  4  Gill  (Md.), 
105.     Contra,  Shelton  v.  Pendleton,  18  Conn.  421. 

[  153  ] 


§  284.]        THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVI. 

such  expenses  are  necessaries.  The  husband,  however,  has 
been  reheved  from  Uability  in  some  states,  and  it  will  also  be 
found  that  his  liability  has  been  denied  where  the  proceedings 
have  been  instituted  by  the  wife  without  lawful  or  reasonable 
cause,  and  also  in  cases  where  she  has  an  ample  estate.^" 

§  284.     Alimony  allowed  without  divorce  proceedings. 

In  a  few  states  alimony  may  be  prayed  for  and,  in  the  dis- 
cretion of  the  court,  allowed  without  instituting  divorce 
proceedings.'^  But  to  justify  the  court  in  granting  a  wife 
alimony  without  divorce  proceedings,  she  must  show  that  she 
is  separated  from  her  husband  and  is  absolutely  deprived  of 
his  support.^^  The  wife  must  also  show  that  the  separation 
was  caused  through  no  fault  of  hers.'^  No  decree  can  be 
awarded  if  the  wife  left  her  husband  without  cause,  or  has 
separate  means  of  support,  or  is  herself  in  fault,  or  has  after- 
ward committed  the  crime  of  adultery. ^^ 

In  most  states  alimony  is  looked  upon  as  an  incident  to 
divorce  proceedings.^^ 

2oWolcott  V.  Patterson,  100  Mich.  227,  58  N.  W.  1006,  43  Am.  St.  Rep. 
456,  24  L.  R.  A.  629  and  note. 

21  Galland  v.  Galland,  38  Cal.  265;  Whitcomb  v.  Whitcomb,  46  Iowa,  437; 
Graves  v.  Graves,  36  Iowa,  310,  14  Am.  Rep.  525;  Boggess  v.  Boggess,  4 
Dana  (Ky.),  307;  Keerl  v.  Keerl,  34  Md.  25;  Garland  v.  Garland,  50  Miss. 
694;  Miller  v.  Miller,  1  N.  J.  Eq.  386;  Nicely  v.  Nicely,  3  Head  (Tenn.), 
184. 

22  Anshutz  V.  Anshutz,  16  N.  J.  Eq.  162. 

23  Babbitt  v.  Babbitt,  69  111.  277. 

24Wray  v.  Wray,  33  Ala.  187;  Angelo  v.  Angelo,  81  111.  251;  Wahle  v. 
Wahle,  71  111.  510. 

25  Bowman  v.  Worthington,  24  Ark.  522;  Goss  v.  Goss,  29  Ga.  109;  McGee 
V.  McGee,  10  Ga.  477;  Moon  v.  Baum,  58  Ind.  194;  Chapman  v.  Chapman, 
13  Ind.  396;  Henderson  v.  Henderson,  64  Me.  419;  Adams  v.  Adams,  100 
Mass.  365,  1  Am.  Rep.  Ill;  Shannon  v.  Shannon,  68  Mass.  285;  Coffin  v. 
Dunham,  62  Mass.  404,  54  Am.  Dec.  769;  Mclntire  v.  Mclntire,  80  Mo.  470; 
De  Graw  v.  De  Graw,  7  Mo.  App.  121;  Parsons  v.  Parsons,  9  X.  H.  309,  32 
Am.  Dec.  362;  Cory  v.  Cory,  11  N.  J.  Eq.  400;  Rockwell  v.  Morgan,  13 
N.  J.  Eq.  119;  Davis  v.  Davis,  75  N.  Y.  221;  Prosser  v.  Prosser,  47  Vt. 
667;  Harrington  v.  Harrington,  10  Vt.  505. 

[154] 


CHAP.    XXVI.]  ALIMONY.  [§   285. 

§  285.     Liability  of  non-resident  defendant. 

A  decree  for  alimony  or  for  counsel  fees  cannot  be  imposed 
upon  a  non-resident  defendant,  imless  he  ig  summoned  or 
voluntarily  appears  in  court,  in  which  case  he  can  be  bound 
by  order  of  the  court  although  his  domicil  is  in  another  state. ^® 
The  courts  have  held  that  there  must  be  personal  service  of 
summons  to  justify  an  award  of  alimony,  and  it  cannot  be 
allowed  where  the  defendant  was  notified  by  publication  and 
failed  to  appear." 

§  286.     Husband's  right  to  alimony. 

In  some  states  alimony  may  be  allowed  the  husband,  and 
in  a  few  cases  the  husband  has  been  allowed  alimony  out  of 
the  income  of  the  wife.^*  The  court,  upon  granting  a  divorce 
to  the  husband  may  decree  alimony  to  the  wife.^^  A  husband 
cannot  be  granted  alimony  in  Nebraska.^*^ 

§  287.     Prayer  for  alimony. 

If  the  libellant  or  petitioner  desires  that  alimony  shall  be 
decreed,  it  should  be  prayed  for  specially,  according  to  the 
better  practice,  at  the  time  of  filing  the  bill.^^ 

Without  Prayer. 

Alimony,  being  an  incident  to  divorce,  may  be  decreed 
on  motion. ^^ 

Petition. 

A  petition  or  motion  for  permanent  alimony  may  be  asked 
for  at  any  time  pending  the  suit. 


33 


26Gargner  v.  Gargner,  56  Md.  127;  Ellison  v.  Martin,  53  Mo.  575. 

27  Turner  v.  Turner,  44  Ala.  437;  Beard  v.  Beard,  21  Ind.  321;  Madden  v. 
Fielding,  19  La.  Ann.  505;  Leith  v.  Leith,  39  N.  H.  20. 

28  Mass.  Rev.  Laws,  c.  152,  §  30;  Vt.  Stat.  §  2694;  R.  I.  Gen.  Laws  (1902), 
c.  971,  §  8;  Small  v.  Small,  42  Iowa,  111;  Garnett  v.  Gamett,  114  Mass.  347. 

29  Graves  v.  Graves,  108  Mass.  314. 

30  Greene  v.  Greene,  49  Xeb.  546,  68  N.  W.  947,  34  L.  R.  A.  110  and  note. 

31  Chandler  v.  Chandler,  13  Ind.  492;  Prescott  v.  Prescott,  59  Me.  146. 

32  Prescott  V.  Prescott,  59  Me.   146. 

33  Prescott  V.  Prescott,  59  Me.  146. 

[155] 


§291.]      THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVI. 

§  288.     Attachment  of  husband's  property. 

Upon  a  libel  by  a  wife  for  a  divorce  for  a  cause  accruing 
after  the  marriage,  an  attachment  to  secure  a  suitable  sup- 
port and  maintenance  to  her,  and  to  such  children  as  may  be 
committed  to  her  care  and  custody,  may  be  made  upon  the 
husband's  real  and  personal  estate  by  the  officer  serving  the 
libel.34 

§  289.    How  attachment  may  be  made. 

When  the  libel  is  filed  in  vacation  in  the  office  of  the  clerk 
of  the  court,  such  attachment  may  be  made  upon  the  summons 
issued  thereon,  in  the  same  manner  as  attachments  are  made 
upon  writs  in  actions  at  common  law.  When  the  libel  is  in 
the  first  instance  presented  to  the  court,  the  attachment  may 
be  made  in  like  manner  upon  the  order  of  notice  issued  thereon. 
The  amount  for  which  the  attachment  is  to  be  made  should  be 
expressed  in  the  summons  or  order  of  notice.  The  attach- 
ment may  be  made  by  trustee  process,  in  which  case  there 
should  be  inserted  in  the  summons  or  order  of  notice  a  direc- 
tion to  attach  the  goods,  effects,  and  credits  of  the  libellee 
in  the  hands  of  the  alleged  trustee,  and  service  shall  be  made 
upon  the  trustee  by  copy.  The  court  may  in  such  cases  make 
all  necessary  orders  to  secure  to  the  trustee  his  costs.^^ 

§  290.     Husband's  income. 

A  man  is  in  duty  bound  to  support  his  wife  to  the  best  of 
his  ability,  but  if  he  is  insolvent,  sick,  or  unable  to  earn  money, 
he  cannot  be  compelled  to  pay  alimony.^® 

§  291.     Husband's  ability. 

If  the  husband  is  without  property,  but  is  in  good  health, 

34Goss  V.  Goss,  29  Ga.  109;  Burrows  i;.  Purple,  107  Mass.  428;  Glover's 
Appeal,  68  Pa.  St.  143. 

35  See  Form  No.  3,  p.  351. 

36  Eidenmuller  v.  Eidenmuller,  37  Cal.  364;  Bankston  v.  Bankston,  27 
Miss.  692;  Germond  v.  Gerinond,  4  Paige  (N.  Y.),  643;  Campbell  v.  Camp- 
bell, 37  Wis.  206. 

[156] 


CHAP.  XXVI.]  ALIMONY.  [§  292. 

strong  and  able  to  work,  he  will  have  to  support  his  wife." 
A  woman  who  is  used  to  work  cannot  compel  her  husband  to 
maintain  her  in  idleness  unless  he  is  abundantly  able  to  do  so.^* 

§  292.     Conduct  of  parties. 

In  awarding  alimony,  the  conduct  of  the  parties  is  taken 
into  consideration,  and  an  innocent  wife  who  has  been  greatly 
wronged  will  ordinarily  be  granted  a  larger  allowance  than 
she  otherwise  would  have  been  granted,  if  her  conduct  had 
influenced  her  husband's  wrongful  act.^^  Accordingly,  in  de- 
creeing alimony  the  court  will  take  into  consideration  the 
conduct  of  the  wife,  and,  if  she  contributed  to  the  cause  of 
divorce,  she  will  be  allowed  less  alimony  than  she  would 
otherwise  have  been  allowed. '*°  In  the  discretion  of  the  court, 
alimony  may  be  ordered  to  be  paid  to  a  guilty  wife  after 
divorce  given  to  the  husband  for  her  offence.'*^  And  this  is 
sometimes  done  in  cases  of  separate  support,  and  in  divorces 
from  bed  and  board,  where  it  is  shown  to  the  satisfaction  of 
the  court  that  both  parties  have  been  guilty  of  adultery, 
and  the  husband  has  property  and  the  wife  none.'*^ 

§  293.     Both  parties  at  fault. 

Alimony  will  be  granted  when   both  parties  are  at  fault. "^^ 

§  294.     Wife  at  fault. 

If  a  wife,  through  her  own  fault,  causes  her  husband  to 
desert  her,  she  will  not  be  allowed  alimony.''-* 

37  Muse  V.  Muse,  84  X.  C.  35;  Bailey  v.  Bailey,  21  Gratt.  (Va.)  57;  Camp- 
bell V.  Campbell,  37  Wis.  206. 

38  Ressor  v.  Ressor,  82  111.  442. 

39  Becker  v.  Becker,  79  111.  532;  Stewardson  v.  Stewardson,  15  111.  145; 
Helden  i-.  Helden,  7  Wis.  296. 

*o  Tumbleson  v.  Tumbleson,  79  Ind.  558;  Peckford  v.  Peckford,  1  Paige 
(X.  Y.),  274. 
<i  Graves  v.  Graves,  108  Mass.  314. 
«  See  Graves  v.  Graves,  108  Mass.  314,  and  cases  cited. 
*3  Bascom  v.  Bascom,  Wright  (Ohio),  632. 

«  Angelo  V.  Angela,  81  lU.  251;  Griffin  v.  Griffin,  8  B.  Men.  (Ky.)  120. 

[157] 


§301.]        THE    LAW    OF   MARRIAGE    AND    DIVORCE.  [CHAP.  XXVI. 

§  295.     Separation  by  mutual  agreement. 

Alimony  may  be  allowed  where  the  husband  and  wife  have 
agreed  to  live  apart.^*^ 

§  296.     Husband  living  in  adultery. 

Alimony  may  be  allowed  the  wife  if  the  husband  has  de- 
serted her  and  is  living  in  adultery. 


46 


§  297.     Abandonment  of  wife. 

If  a  husband  abandons  his  wife  without  justifiable  cause, 
he  is  liable  for  alimony. 


47 


§  298.     Cruelty  to  wife. 

If  the  husband  illtreats  his  wife  and  she  is  forced  to  leave 
him,  she  is  entitled  to  alimony.^* 

§  299.     Husband's  resources. 

In  order  to  allow  the  court  to  grant  alimony  pendente  lite, 
the  husband  must  admit,  or  it  must  be  proved  to  the  satis- 
faction of  the  court,  that  he  is  able  to  pay.' 


49 


§  300.     Condition  of  family. 

In  decreeing  alimony  the  court  will  take  into  consideration 
the  number  of  children,  the  expense  of  maintaining  the  family, 
and  the  condition  of  the  wife's  health.^*^ 

§  301.    Necessity  of  separation  of  parties. 

Alimony  cannot  be  decreed  unless  the  parties  are  actually 

*5  Gray  v.  Gray,  65  Ga.  193;  Hawes  v.  Hawes,  66  Ga.  142. 
48  Thompson  v.  Thompson,  10  Rich.  Eq.  (S.  C.)  416. 

47  Glover  v.  Glover,  16  Ala.  440;  McMullen  v.  McMullen,  10  Iowa,  412; 
Jamison  v.  Jamison,  4  Md.  Ch.  289;  Simpson  v.  Simpson,  31  Mo.  24;  Steele 
V.  Steele,  96  Ky.  382,  29  S.  W.  17. 

48  Kinsey  v.  Kinsey,  37  Ala.  393;  Galland  v.  Galland,  38  Cal.  265;  Finn  v. 
Finn,  62  Iowa,  482,  17  N.  W.  739;  Graves  v.  Graves,  50  Ohio  St.  196,  33 
N.  E.  720;  Devall  v.  Devall,  4  Desaus  (S.  C.),  79;  Almond  v.  Almond,  4 
Rand.  (Va.)  663,  15  Am.  Dec.  781. 

49  Glenn  v.  Glenn,  44  Ark.  46;  Burgess  v.  Burgess,  25  111.  App.  525;  Ross 
V.  Ross,  47  Mich.  185,  10  N.  W.  193;  Battey  v.  Battey,  1  R.  I.  212. 

50  Bursler  v.  Bursler,  22  Mass.  427. 

[158] 


CHAP.  XXVI.]  ALIMONY.  [§  302. 

separated.     If  they  are  living  together  there  is  no  need  of 
alimony. ^^ 

§  302.     Previous  provision  for  wife's  support. 

If  the  husband  has  already  made  suitable  provision  for  his 
wife's  support,  she  will  be  denied  alimony.^^ 

§  303.     Alimony  pending  appeal. 

A  wife  may  be  allowed  alimony  pending  an  appeal  from 
an  order  or  judgment  in  the  divorce  proceedings.^^ 

§  304.     Husband's  denial  under  oath  of  grounds  of  divorce. 

A  wife  will  not  be  denied  alimony  because  the  husband 
denies  the  charges  in  the  bill  and  swears  to  the  truth  of  such 
denial.^^ 

§  305.     "Wife's  property  or  income. 

In  decreeing  alimony  the  court  will  take  into  consideration 
the  capability  of  the  wife.  If  the  wife  has  mdependent  means, 
or  if  she  can  maintain  herself  by  her  own  earnings  in  the  social 
position  she  has  been  accustomed  to,  she  is  not  entitled  to 
alimony.  ^^ 

§  306.     Allowance  of  gross  sum. 

In  most  states,  the  courts  may  allow  a  fixed  sum  of  money 

51  Klemme  v.  Klemme,  37  111.  App.  54;  Burns  v.  Burns,  60  Ind.  259; 
Tayman  v.  Tayman,  2  Md.  Ch.  393;  Battey  v.  Battey,  1  R.  I.  212. 

52  Stevens  v.  Stevens,  49  Mich.  504,  13  N.  W.  835;  McDonough  v.  Mc- 
Donough,  26  How.  Pr.  (N.  Y.)  193. 

53  Jenkins  v.  Jenkins,  91  111.  167;  Peavey  v.  Peavey,  76  Iowa,  443,  41 
N.  W.  67;  Rohrback  v.  Rohrback,  75  Md.  317;  McBride  v.  McBride,  119 
N.  Y.  519,  23  N.  E.  1065. 

54  McGee  v.  McGee,  10  Ga.  477;  Osgood  v.  Osgood,  2  Paige  (N.  Y.),  621; 
Shearin  v.  Shearin,  5  Jones  Eq.  (N.  C.)  233;  Tyrell  v.  Tyrell  (N.  J.),  3  Atl. 
266. 

55  Hawes  v.  Hawes,  66  Ga.  142;  Logan  v.  Logan,  2  B.  Mon.  (Ky.)  142; 
Coles  V.  Coles,  2  Md.  Ch.  350;  Porter  v.  Porter,  41  Miss.  116;  McCarthy  v. 
McCarthy,  137  N.  Y.  500,  33  N.  E.  550;  Beadleston  v.  Beadleston,  103 
N.  Y.  402,  8  N.  E.  735;  Maxwell  v.  MaxweU,  28  Hun  (N.  Y.),  566;  Wright 
V.  Wright,  6  Tex.  29. 

[159] 


§  309.]         THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVI. 

in  a  single  payment,  or  a  part  of  the  husband's  real  estate  in 
full  settlement  of  alimony.^^  The  allowance  by  way  of  ali- 
mony to  the  wife  may  be  either  in  annual  instalments  or  in 
one  gross  sum.^^ 

§  307.    Wife  as  creditor  after  decree  for  alimony. 

A  wife  who  has  had  alimony  decreed  to  her  becomes  a 
creditor  of  the  husband.  The  decree  for  alimony  creates  a 
debt  of  record  in  her  favor.^^  And  a  discharge  in  bankruptcy 
or  insolvency  does  not  discharge  the  husband  from  the  obliga- 
tion, as  alimony  is  not  a  debt  founded  on  a  contract  within 
the  meaning  of  the  bankruptcy  or  insolvency  statutes.^^ 

§  308.    Requiring  husband  to  disclose  on  oath. 

When  the  court  deems  it  proper  to  award  the  wife  personal 
estate,  or  money  in  lieu  thereof,  it  may  require  the  husband  to 
disclose  on  oath  what  personal  estate  has  come  to  him  by 
reason  of  the  marriage,  how  it  has  been  disposed  of,  and  what 
portion  thereof  remains  in  his  hands.®" 

§  309.     Reference  to  master. 

If  the  petition  for  alimony  does  not  state  what  property  the 
husband  has,  the  matter  may  be  referred  to  a  master  or  referee, 
and  the  report  of  such  master  or  referee  should  state  the  hus- 
band's ability  to  pay.®^ 

56  Robinson  v.  Robinson,  79  Cal.  511,  21  Pac.  1095;  Inskeep  v.  Inskeep, 
5  Iowa,  204;  Burrows  v.  Purple,  107  Mass.  428;  Crews  v.  Mooney,  74  Mo.  26; 
Calame  v.  Calame,  25  N.  J.  Eq.  548;  Williams  v.  Williams,  6  S.  D.  284,  61 
N.  W.  38. 

57  Burrows  v.  Purple,  107  Mass.  428. 

58  Chase  v.  Chase,  105  Mass.  385;  Allen  v.  Allen,  100  Mass.  373;  Morrison 
V.  Morrison,  49  N.  H.  69. 

59  Noyes  v.  Hubbard,  64  Vt.  302,  15  L.  R.  A.  394  and  note. 

60  Umlauf  V.  Umlauf,  22  111.  App.  580. 

61  Story  V.  Story,  Walk.  (Mich.)  421,  8  Am.  St.  Rep.  417;  Brotherton  v. 
Brotherton,  12  Neb.  75,  10  N.  W.  544;  Worden  v.  Worden,  3  Edw.  Ch. 
(N.  Y.)  387. 

[160] 


CHAP.  XXVI.]  ALIMONY.  [§310. 

§  310.     Reference  to  arbitrator. 

The  question  of  alimony  may  be  referred  to  an  arbitrator 
by  agreement  of  the  parties. ^^ 

§  311.     Surety  for  payment  of  alimony. 

When  alimony  or  other  allowance  is  decreed  to  the  wife  or 
children,  the  court  may  require  sufficient  surety  to  be  given 
for  its  pajonent  according  to  the  terms  of  the  decree.®^ 

§  312.     Decree  of  alimony  as  lien. 

In  the  absence  of  statute,  a  decree  for  alimony  does  not 
create  a  lien  upon  the  husband's  real  estate,  unless  the  decree 
is  fastened  upon  a  certain  piece  of  property.  It  is  a  personal 
charge  on  the  defendant  and  not  on  his  estate.^^ 

§  313.     Enforcement  of  decree  for  alimony. 

(a)  Making  decree  a  lien  on  real  estate.  In  granting  alimony 
the  court  may  declare  the  decree  to  be  a  lien  upon  certain  real 
estate  of  defendant.*^ 

(b)  Issuance  of  attachment.  The  court  may  enforce  the  pay- 
ment of  alimony  by  attachment.^^ 

(c)  Issuance  of  execution.  The  payment  of  alimony  may  be 
enforced  by  execution.®' 

82  Carter  v.  Carter,  109  Mass.  306. 

63  Holmes  v.  Holmes,  29  N.  J.  Eq.  9. 

64Casteel  v.  Casteel,  38  Ark.  477;  Olin  v.  Hungerford,  10  Ohio,  271; 
Lawton  v.  Taylor,  12  R.  I.  210;  Campbell  v.  Campbell,  37  Wis.  206;  Fisher 
V.  Fisher,  19  R.  I.  53,  31  Atl.  579. 

65  Thomas  v.  Thomas,  44  111.  App.  604;  Blankenship  v.  Blankenship,  19 
Kan.  159;  Stratton  v.  Stratton,  77  Me.  373,  52  Am.  Rep.  779;  Stoy  v.  Stoy, 
41  N.  J.  Eq.  370;  Galusha  v.  Galusha,  108  X.  Y.  114,  15  N.  E.  63;  Tolerton 
V.  Williard,  30  Ohio  St.  579;  Mahoney  v.  Mahoney,  59  Minn.  347,  61  \.  W. 
334;  Gardenhire  v.  Gardenhire,  2  Okl.  484,  37  Pac.  813. 

66  Goss  r.  Goss,  29  Ga.  109;  Carey  v.  Carey,  2  Daly  (X.  Y.),  424;  Glover's 
Appeal,  68  Pa.  St.  143. 

67  Menzie  v.  Anderson,  65  Ind.  239. 

11  [  161  ] 


§  313.]         THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVI. 

(d)  Appointment  of  receiver.  The  court  may  appoint  a  re- 
ceiver of  the  husband's  property  to  enforce  alimony.^* 

(e)  Requirement  of  security.  The  court  may  order  the  de- 
fendant to  give  security  for  the  payment  of  alimony.®^  And 
a  refusal   to  give  security  is   contempt.^" 

(f)  Issuance  of  injunction.  The  court  may  issue  an  injunc- 
tion to  prevent  the  husband  from  disposing  of  his  property 
to  prevent  the  payment  of  ahmony.'^ 

(g)  Issuance  of  writ  of  ne  exeat.  Where  the  complainant  has 
a  reasonable  apprehension  that  the  defendant  is  about  to 
leave  the  state  to  avoid  paying  alimony,  the  court  may  issue 
the  writ  of  ne  exeat,  or  it  may  be  issued  before  the  suit  has 
been  heard  on  its  merits. '''  The  defendant  may  be  relieved 
of  the  penalties  of  this  writ  by  giving  satisfactory  security .'^^ 

(h)  Imprisonment  for  contempt.  In  many  states,  if  the  de- 
fendant refuses  to  pay  to  his  wife  alimony  after  being  ordered 
by  the  court  so  to  do,  he  may  be  imprisoned  for  contempt.'^^ 
Contempt  proceedings  will  also  lie  to  compel  payment  of  in- 
stalments of  alimony  ordered  to  be  paid  in  the  future  by  a 
final  judgment  of  divorce,  where  an  execution  cannot  be  issued, 
since  there  is  no  provision  of  law  for  collecting  such  judgment. 
Inability  to  pay  instalments  of  alimony,  brought  about  by 
the  party  himself  with  the  intention  to  avoid  payment,  will 

68  Holmes  v.  Holmes,  29  N.  J.  Eq.  9;  Carey  v.  Carey,  2  Daly  (N.  Y.),  424. 

69  Holmes  v.  Holmes,  29  N.  J.  Eq.  9. 

70  Andrews  v.  Andrews,  69  111.  609. 

71  Norris  v.  Norris,  27  Ala.  519;  Draper  v.  Draper,  68  111.  17;  Gechter  v. 
Gechter,  51  Md.  187;  Ricketts  v.  Ricketts,  4  Gill.  (Md.)  105. 

72  Bylandt  v.  Bylandt,  6  N.  J.  Eq.  28. 

73  McGee  v.  McGee,  8  Ga.  295,  52  Am.  Dec.  407. 

74  Perkins,  Ex  parte,  18  Cal.  60;  Carlton  v.  Carlton,  44  Ga.  216;  Isaacs 
V.  Isaacs,  61  How.  Pr.  (N.  Y.)  369;  Pain  v.  Pain,  80  N.  C.  322.  See  also 
infra,   §321. 

[  162  ] 


CHAP.  XXVI.]  ALIMONY.  [§  314. 

not  prevent  his  refusal  to  pay  from  being  contumacious  and 
punishable  as  a  contempt  of  court.''^ 

§  314.     Successive  executions. 

Successive  executions  may  issue  to  secure  alimony  imtil  the 
property  attached  is  exhausted,  and  the  attachment  will  hold 
good  until  that  time.  The  levy  of  execution  for  alimony  will 
confer  a  valid  title  against  the  grantee  of  the  husband  after 
attachment.'® 

§315.     Oath  for  poor  debtors. 

A  husband  may  be  lawfully  arrested  on  an  execution  issued 
upon  a  decree  for  alimony;  and,  upon  his  application  to  take 
the  oath  for  the  relief  of  poor  debtors,  charges  of  fraud  may  be 
filed  against  him  by  the  wife.'^' 

§  316.     Appointment  of  trustee  of  wife's  property. 

When  personal  estate,  or  money  in  lieu  thereof,  is  awarded 
to  the  wife,  the  court  may,  in  its  discretion,  order  such  estate 
or  money  to  be  delivered  or  paid  to  a  trustee  appointed  by  the 
court,  upon  trust  to  invest  the  same  and  apply  the  income 
thereof,  in  such  manner  as  the  court  may  direct,  to  the  sup- 
port and  maintenance  of  the  wife  and  of  the  minor  children 
of  the  marriage  or  any  of  them,  and  also  to  pay  over  the  prin- 
cipal sum  to  the  wife  and  children  m  such  proportions  and  at 
such  times  as  may  be  ordered  by  the  final  decree  of  the  court. 
The  trustee  should  give  such  bond  for  the  faithful  performance 
of  his  trust  as  the  court  may  require.'^* 

§  317.     Modification  of  decree  for  alimony. 

After  a  decree  for  alimony  or  other  allowance  for  the  wife 

75  staples  V.  Staples,  87  Wis.  592,  58  N.  W.  1036,  24  L.  R.  A.  433  and  note. 
78DowTis  V.  Flanders,  150  Mass.  92,  22    N.  E.  585;  Place  v.  Washburn, 
163  Mass.  530,  40  N.  E.  853. 

77  Foster  v.  Foster,  130  Ma?s.  189. 

78  Burrows  v.  Purple,  107  Mass.  428. 

[163] 


§  320.]         THE    LAW    OF    MAREIAGE    AND    DIVORCE.  [CHAP.  XXVI. 

or  children,  or  after  a  decree  for  the  appointment  of  trustees 
to  receive  and  hold  property  in  trust  for  the  use  of  the  wife 
or  children,  the  court  may,  from  time  to  time,  on  the  petition 
of  either  party,  revise  and  alter  such  decree,  and  may  make 
any  decree  which  it  might  have  made  in  the  original  suit.'^ 

§  318.     Termination  of  alimony. 

Alimony  ceases  upon  the  death  of  either  party  but  the  wife 
may  collect  arrears  out  of  the  husband's  estate.*" 

§  319.     Reconciliation. 

If  the  parties  become  reconciled,  and  the  wife  returns  to  her 
husband,  she  cannot  claim  further  alimony.*^ 

§  320.     Effect  of  wife's  subsequent  adultery  upon  alimony. 

Cases  may  arise  where  it  may  be  highly  unjust  and  in- 
equitable that  the  husband  should  be  compelled  to  continue 
to  support  his  divorced  wife.  When  the  husband  is  required 
by  his  daily  labor  to  support  the  wife,  if  she  should  lead  a  life 
of  idleness  and  prostitution,  reasons  of  justice  would  seem  to 
justify  the  court,  in  the  exercise  of  its  general  chancery  powers, 
to  modify  or  revoke  the  former  order  for  alimony.*^  In  cases 
of  divorce  the  courts  look  at  the  standing  of  the  parties,  the 
conduct  of  each,  and  from  whence  the  estate  is  derived,  and, 
having  due  regard  to  the  manner  of  living  of  each,  will  make 
such  allowance  to  the  wife  as  is  reasonable  and  just.     When 

79  Kurtz  V.  Kurtz,  38  Ark.  119;  Robbins  v.  Robbins,  101  111.  416;  Still- 
man  V.  Stillman,  99  111.  196,  39  Am.  Rep.  21;  Thomas  v.  Thomas,  44  111. 
App.  604  ;  Fisher  v.  Fischer,  32  Iowa,  20  ;  Anderson  v.  Anderson,  84  Iowa, 
198,  50  N.  W.  671;  Sparhawk  v.  Sparhawk,  120  Mass.  390;  Graves  v.  Graves, 
108  Mass.  314;  Bursler  v.  Bursler,  22  Mass.  427;  Waters  v.  Waters,  49  Mo. 
385;  Atkins  v.  Atkins,  13  Neb.  271,  11  N.  W.  285;  Holmes  v.  Holmes,  4 
Barb.  (N.  Y.)  295;  Moe  v.  Moe,  39  Wis.  308;  Greenleaf  v.  Greenleaf,  6  S. 
Dak.  348,  61  N.  W.  42;  State  ex  rel.  Nixon  v.  Second  Judicial  Dist.  Ct., 
14  Mont.  398,   36  Pac.  757. 

80  Knapp  V.  Knapp,  134  Mass.  353. 

81  Holbrook  v.  Holbrook,  18  La.  Ann.  643;  Tiffin  v.  Tiffin,  2  Binn.  (Pa.)  202. 

82  Cogswell  V.  Tibbeth,  3  N.  H.  41. 

[164] 


CHAP.  XXVI.]  ALIMONY.  [§321. 

the  allowance  has  been  thus  made  neither  has  the  right  to  com- 
plain of  the  subsequent  conduct  of  the  other,  and  the  failure 
of  the  wife  to  lead  a  chaste  life  will  afford  no  ground  for  de- 
priving her  of  her  alimony  as  previously  fixed,  nor  will  the 
failure  of  the  husband  to  conduct  himself  properly  afford 
ground  for  increasing  her  allowance.*^  Where  a  w^ife  ob- 
tains a  divorce  for  the  misconduct  of  the  husband,  and  a  decree 
for  alimony,  her  subsequent  adultery  will  not  authorize  the 
court  to  alter,  modify,  or  set  aside  such  decree.  After  the 
divorce  the  wife  owes  no  duty  to  the  husband,  the  nonper- 
formance of  which  will  forfeit  her  right  to  the  alimony  awarded 
her.  A  petition  by  a  husband  to  be  relieved  from  the  further 
payment  of  alimony  awarded  to  his  wife  on  decree  of  divorce 
for  his  misconduct,  on  the  ground  that  she  was  living  a  life 
of  prostitution,  is  clearly  insufficient,  if  it  fails  to  show  that 
the  husband  derived  no  estate  or  property  from  the  wife,  or 
that  his  estate  and  property  are  not  the  result  of  their  joint 
earnings  and  savings.  The  petition  should  also  show  whether 
the  wife  has  other  means  of  support;  that  he  has  paid  the 
alimony  due  her  up  to  the  time  of  the  filing  of  his  petition; 
and  that  his  fault  or  misconduct  did  not  cause  the  wrongful 
acts  of  the  wife.  While  in  default  himself,  by  neglecting  or 
refusing  to  comply  with  the  requirements  of  the  decree,  he 
cannot  be  heard  to  ask  for  its  being  vacated.*^ 

§  321.  Nature  of  contempt  proceedings  to  compel  payment  of 
alimony. 
Alunony  may  be  enforced  by  process  for  contempt.*^  And 
many  courts  have  held  that  alimony  is  not  a  debt  founded 
upon  contract,  but  is  more  in  the  nature  of  a  penalty,  imposed 
upon  the  husband  for  his  wrongful  acts  and  noncompliance 

83  Cole  V.  Cole,  35  III.  App.  544;  Sloan  v.  Cox,  4  Hayw.  (Term.)  75. 

84  Cole  V.  Cole,  142  111.  19,  31  N.  E.  109,  34  Am.  St.  Rep.  56,  19  L.  R.  A. 
811  and  note. 

85  Slade  V.  Slade,  106  Mass.  499.     See  also  supra,  §  313   (h) 

[165] 


§  321a.]      THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVI. 

with  the  order  of  court.*^  A  decree  for  aUmony  is  said 
by  the  Supreme  Court  of  the  United  States  to  become  a 
"judicial  debt  of  record  against  the  husband,"  and  that  a 
suit  may  be  brought  in  another  jurisdiction  to  "carry  the 
decree  into  a  judgment  there,  with  the  same  effect  that  it 
had  in  the  state  in  which  the  decree  was  given."  Accord- 
mgly  a  bill  in  equity  was  maintained  in  the  circuit  court  for 
the  district  of  Wisconsin  to  enforce  a  decree  for  alimony 
made  in  New  York  upon  a  divorce  from  bed  and  board." 

§  321a.     Sister  state  may  enforce  payment. 

A  sister  state  may  enforce  a  final  decree  for  alimony,  but 
it  cannot  enforce  a  decree  for  future  payments,  for  such  a 
decree  is  subject  to  modification  by  the  court  which  passed 
it.«8 

86  Perkins  V.  Perkins,  18  Cal.  60;  Carlton  v.  Carlton,  44  Ga.  216;  Ander- 
son V.  Anderson,  65  Ind.  239;  Daniels  v.  Lindley,  44  Iowa,  567;  Allen  v. 
Allen,  100  Mass.  373;  Pain  v.  Pain,  80  N.  C.  322. 

87  Barber  v.  Barber,  21  How.    (U.  S.)  582,  595,  16  L.  ed.  226. 

88  Page  V.  Page,  189  Mass.  85,  75  N.  E.  92;  Lynde  v.  Lynde,  54  N.  J.  Eq. 
473,  35  Atl.  641,  Id.,  55  N.  J.  Eq.  591,  39  Atl.  1114  (see  56  N.  E.  979,  162 
N.  Y.  405,  48  L.  R.  A.  679).  Affirmed,  181  U.  S.  183,  45  L.  ed.  410.  In 
some  cases,  however,  the  particular  decree  although  providing  for  such 
further  payment  was  in  such  a  form  as  to  be  regarded  as  not  subject  to 
further  revision  by  the  court  which  passed  it.  See  Brisbane  v.  Dobson,  50 
Mo.  App.  170.  See  also  Harrison  v.  Harrison,  20  Ala.  629,  50  Am.  Dec. 
227;  Arrington  v.  Arrington,  127  N.  C.  190,  37  S.  E.  212,  80  Am.  St.  Rep. 
791,  52  L.  R.  A.  201.  Where  a  foreign  alimony  decree  was  not  alleged  to 
be  final  in  a  petition  to  enforce  it,  the  court  held  it  was  not  a  decree  en- 
forceable in  Massachusetts,  within  the  Const.  U.  S.,  Art.  4,  §  1,  requiring 
that  full  faith  and  credit  shall  be  given  in  each  state  to  the  judicial  pro- 
ceedings of  every  other  state.     Page  v.  Page,  189  Mass.  85,  75  N.  E.  92. 


[1661 


CHAP.  XXVII.] 


CUSTODY  OF  CHILDREN. 


[§  322. 


CHAPTER    XXVII. 


CUSTODY   OF   CHILDREN. 


322.  Jurisdiction   of   court. 

323.  Fitness  of  parents. 

324.  Custody  pending  divorce  pro- 

ceedings. 

325.  Grounds  for  award. 


§  326.  Agreement    of    parties 
access  to  child. 

327.  Modification  of  award. 

328.  Preference  of  children. 

329.  Support  of  children. 


and 


§  322.     Jurisdiction  of  court. 

The  provisions  made  by  the  court  in  a  divorce  case  for  the 
care  and  custody  of  the  children  of  the  parties  thereto  are 
based  upon  the  discretion  of  the  court  as  to  what  are  the  best 
interests  of  the  children,  and  so  many  elements  enter  into  its 
consideration  that  it  is  difficult  to  formulate  a  general  rule, 
as  each  case  must  be  determined  on  its  own  merits.  Juris- 
diction is  usually  conferred  by  the  statutes  regulating  divorce 
in  each  state,  and  broad  discretionary  powers  are  granted  for 
the  purpose,  and  where  the  court  has  legal  jurisdiction  of  the 
divorce  case,  the  exercise  of  its  discretion  is  conclusive.^ 

§  323.     Fitness  of  parents. 

The  father  of  a  legitimate  child  is  liable  for  its  maintenance, 
protection,  and  education  and  is  entitled  to  its  custody.  He 
may  lose  the  right  of  custody  by  his  conduct  towards  the  child 
or  its  mother,  and  the  custody  may  be  awarded  the  mother 
in  a  divorce  case,  based  on  his  bad  conduct  and  unfitness. ^ 
Unless  the  mother  is  shown  to  be  extremely  unfit,  the  custody 

1  Bush  V.  Bush,  37  Ind.  164;  Logan  v.  Logan,  90  Ind.  107;  Rice  v.  Rice, 
21  Tex.  68. 

2  Green  v.  Green,  52  Iowa,  403,  3  N.  W.  429;  McBride  v.  McBride,  1  Bush. 
(Ky.)  15;  Jackson  v.  Jackson,  8  Ore.  402;  Lyle  v.  Lyle,  86  Tenn.  372,  6  S.  W. 
878;  Welch  v.  Welch,  33  Wis.  534. 

[167] 


§  325.]       THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVII. 

of  a  child  in  arms  is  generally  awarded  to  her,  even  if  she  is 
not  altogether  blameless.^  It  may  be  that  the  court  will 
conclude  that  neither  party  is  fit  to  have  the  custody  of  the 
children,  and  they  may  in  such  case  be  placed  in  the  care  and 
custody  of  third  persons,  who  may  or  may  not  be  relatives." 


§  324.     Custody  pending  divorce  proceedings. 

Courts  have  authority,  in  their  discretion,  to  make  such 
orders  and  decrees  for  the  care  and  custody  of  children  while 
the  divorce  proceedings  are  pending,  as  they  may  consider 
expedient,  although,  as  a  rule,  the  custody  of  the  children  will 
not  be  changed  pending  the  suit  unless  there  appears  to  be 
good  cause  for  the  same.^ 

§  325.    Grounds  for  award. 

The  court,  in  decreeing  the  care  and  custody  of  the  children 
to  either  the  father  or  mother,  should,  and  usually  does,  con- 
sult the  interests  and  feelings  of  the  children,  rather  than  the 
desires  of  the  parents.  In  deciding  this  question  the  court 
will  take  into  consideration  everything  that  pertains  to  the 
interest  of  the  children,  the  property  of  the  parents,  the 
expectations  of  either  parent,  the  relative  educational,  social, 
and  moral  advantages,  and  the  care  and  love  which  may  be 
expected  to  be  given  them.  Children  are  not  taken  from  one 
parent  as  a  punishment  for  guUt  or  given  to  the  other  as  a 
reward.^  Where  a  divorce  is  granted  on  the  ground  of  adultery, 
the  custody  of  the  children  is  generally  given  to  the  prevailing 

3  Haskell  v.  Haskell,  152  Mass.  16,  24  N.  E.  859;  Messenger  v.  Messenger 
56  Mo.  329. 

4  Adams  v.  Adams,  1  Duv.  (Ky.)  167;  Lambert  v.  Lambert,  16  Ore.  485, 
19  Pac.  459;  Rice  v.  Rice,  21  Tex.  58. 

5  Gilpin  V.  Gilpin,  12  Colo.  504,  21  Pac.  612;  Foss  v.  Foss,  100  111.  576; 
Day  V.  Day,  4  Misc.  (N.  Y.)  235. 

6  Wand  V.  Wand,  14  Cal.  512;  Miner  v.  Miner,  11  111.  43;  Cowls  v.  Cowls, 
8  lU.  435,  44  Am.  Dec.  708. 

[16S] 


CHAP.  XXVII.]  CUSTODY   OF    CHILDREN.  [§  326. 

party .'^     But  this  rule  does  not  always  follow,  as  the  mterests 
or  preference  of  the  children  may  appear  to  be  otherwise.^ 

§  326.     Agreement  of  parties  and  access  to  child. 

The  court  is  not  bound  or  controlled  in  the  exercise  of  its 
discretion  by  any  agreement  between  the  parties  to  a  divorce 
suit  for  the  care  or  custody  of  the  children,  or  by  any  agree- 
ment that  the  party  not  having  custody  may  have  access  to 
the  child.^  The  right  of  access  to  the  child  will  generally  be 
decreed,  unless  there  are  extreme  grounds  for  a  refusal.^" 

§  327.    Modification  of  award. 

The  court  has  power  to  modify,  for  cause  shown,  at  any 
subsequent  time,  any  decree  concerning  the  care  and  custody 
of  children,  and  where  it  once  had  jurisdiction  of  the  parties 
and  children,  it  may  make  a  modification  of  its  decree,  even 
if  the  children  are  out  of  its  jurisdiction.^^ 

§  328.     Preference  of  children. 

If  a  minor  child  is  of  sufficient  age  and  discretion  to  have 
an  intelligent  opinion  of  its  own,  and  expresses  a  preference 
as  to  which  parent  it  prefers  to  have  the  custody,  the  court 
will  generally  approve  the  preference  and  make  an  award  ac- 
cordingly.^^ 

^  Kremelberg  v.  Kremelberg,  52  Md.  553;  Small  v.  Small,  28  Neb.  843, 
45  N.  W.  248;  Uhlman  v.  Uhlman,  17  Abb.  New  Cas.  (N.  Y.)  263. 

8  Anon.,  55  Ala.  428;  Reeves  v.  Reeves,  75  Ind.  342;  Irwin  v.  Irwin,  96 
Ky.  318,  28  S.  W.  664,  30  S.  W.  417. 

9  Johnson  v.  Terry,  34  Conn.  259;  Cook  v.  Cook,  1  Barb.  Ch.  (N.  Y.)  639. 

10  Haley  v.  Haley,  44  Ark.  429;  Miner  v.  Miner,  11  lU.  43;  Burge  v.  Burge, 
88111.164. 

11  Cox  V  Cox  25  Ind.  303;  Andrews  v.  Andrews,  15  Iowa,  423;  btratton 
V.  Stratton,  73  Me.  481;  Oliver  v.  Oliver,  151  Mass.  349,  24  X.  E.  51;  Rogers 
V.  Rogers,  51  Ohio  St.  1,  36  N.  E.  310;  Hoffman  v.  Hoffman,  15  Ohio  bt. 
427.     Contra,  Williams  v.  Williams,  13  Ind.  523. 

12  Homing  V.  Horning,  107  Mich.  587,  65  N.  W.  555;  English  v.  English, 

32  X.  J.  Eq.  738. 

[  169  ] 


§  329.]       THE    LAW    OF   MARRIAGE    AND    DIVORCE.  [CHAP.  XXVII. 
§  329.     Support  of  children. 

The  party  to  whom  the  custody  of  children  is  awarded  must 
support  them.  But  where  no  award  is  made  as  to  the  custody 
of  children,  the  liability  of  the  father  to  support  his  minor 
children  still  continues.^^  The  father  is  liable  when  the 
custody  is  given  to  a  third  person.^^ 

isMaddox  v.  Patterson,  80  Ga.  719,  6  So.  581;  Gilley  v.  Gilley,  79  Me. 
292,  9  Atl.  623,  1  Am.  St.  Rep.  307;  Miller  v.  Miller,  64  Me.  484;  Brow  v. 
Brightman,  136  Mass.  187. 

"  McCarthy  v.  Hinman,  35  Conn.  538. 


[170] 


CHAP.  XXVIII.] 


VACATING   DECREES. 


[§  330. 


CHAPTER    XXVIII. 


VACATING    DECREES. 


330.  General  rule. 

331.  Petition  to  vacate. 

332.  Who  may  bring  petition. 

333.  Impersonation. 

334.  False  testimony. 

335.  Collusion. 

336.  Decree  vacated  after  subse- 

quent marriage. 

337.  Laches  in  vacating  decree. 

338.  Decree  under  repealed  statute. 


§  339.  Declaring  decree  of  other 
state  void  not  unconstitu- 
tional. 

340.  Objection  to  decree  nisi  be- 

coming absolute. 

341.  Death  of  either  party  not  a 

bar. 

342.  By    the    court    on    its    own 

motion. 


§  330.     General  rule. 

The  decree  of  a  divorce  court  may  be  set  aside  or  vacated, 
like  the  judgment  of  any  other  court,  for  fraud  or  other  im- 
position, or  whenever  it  appears  that  an  innocent  party,  with- 
out notice,  has  been  aggrieved  by  the  fraud  of  the  other  party. 
Where  the  jurisdiction  of  the  court  was  obtained  by  fraud, 
or  misrepresentation  as  to  domicil,  the  decree  will  be  vacated.^ 

§  331.     Petition  to  vacate. 

The  proper  proceedmg  to  vacate  a  decree  is  by  petition, 
which  should  set  forth  specifically  the  grounds  relied  upon 
for  vacating  the  decree.  It  should  also  show,  if  required, 
that  it  is  brought  within  the  statutory  time.^ 

§  332.     Who  may  bring  petition. 

A  petition  to  vacate  a  decree  can  only  be  brought  by  the 

iScanlan  v.  Scanlan,  41  lU.  App.  449;  Earle  v.  Earle,  91  Ind.  27;  Ed- 
son  V.  Edson,  108  Mass.  590,  11  Am.  Rep.  393;  Carley  v.  Carley,  73  Mass. 
545;  Wisdom  v.  Wisdom,  24  Neb.  551,  39  N.  W.  594,  8  Am.  St.  Rep.  215; 
Wanamaker  v.  Wanamaker,  10  Phila.  (Pa)  466. 

2  Bomsta  v.  Johnson,  38  Minn.  230,  36  N.  W.  341. 

[171] 


§  337.]     THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [cHAP.  XXVIII. 

innocent  party  who  suffered  by  the  decree.     No  person  not 
a  party  to  the  original  suit  can  bring  a  petition.^ 

§  333.     Impersonation. 

If  one  person  impersonates  another,  either  as  complainant 
or  respondent,  and  thus  obtains  a  decree,  the  decree  will  be 
set  aside,  for  the  court  has  been  imposed  upon  by  gross  fraud, 
and  the  parties  are  criminally  liable  for  perjury.^ 

§  334.     False  testimony. 

The  giving  or  procuring  of  false  evidence  before  a  divorce 
court  is  good  ground  for  vacating  the  decree  granted  upon 
such  evidence.^ 

§  335.     Collusion. 

A  decree  of  divorce  will  be  vacated  if  it  appears  that  there 
was  any  agreement  or  collusion  between  the  parties  to  procure 
it.« 
§  336.    Decree  vacated  after  subsequent  marriage. 

The  decree  may  be  vacated  on  the  grounds  already  men- 
tioned, even  after  one  or  both  of  the  parties  have  re-married, 
and  although  there  may  have  been  issue  born  to  such  mar- 
riage.^ 

§  337.     Laches  in  vacating  decree. 

One  who  would  vacate  a  decree  of  divorce  must  act  promptly. 

3  Baugh  V.  Baugh,  37  Mich.  59,  26  Am.  Rep.  495;  Rawlins  v.  Rawlins,  18 
Fla.  345;  Holmes  v.  Holmes,  63  Me.  420;  Edson  v.  Edson,  108  Mass.  590, 
11  Am.  Rep.  393;  Adams  v.  Adams,  51  N.  H.  388,  12  Am.  Rep.  134. 

4  See  Fraud,  supra,  p.  81. 

sWhitcomb  v.  Whitcomb,  46  Iowa,  437;  Mclntyre  v.  Mclntyre,  30 
N.  Y.  Supp.  200;  Nickerson  v.  Nickerson,  13  Wkly.  Notes  of  Cases  (Pa.), 
210;  R.  V.  R.,  20  Wis.  331. 

flDanforth  v.  Danforth,  105  lU.  603;  True  v.  True,  6  Minn.  458;  Mc- 
lntyre V.  Mclntyre.  9  Misc.  (N.  Y.)  252;  Dejiiels  v.  Benedict,  50  Fed.  347. 
See  also,  supra,  p.  135. 

7  Medina  v.  Medina,  22  Colo.  146,  43  Pac.  1001;  Holmes  v.  Holmes,  63 

Me.  420;  Bomsta  v.  Johnson,  38  Minn.  230,  36  N.  W.  341;  Simpkins  v. 

Simpkins,  14  Mont.  386,  36  Pac.  759,  43  Am.  St.  Rep.  641;  Robertson  v. 

Robertson,  9  Daly  (N.  Y.),  44;  Wortman  v.  Wortman,  17  Abb.  Pr.  (N.  Y.)  66. 

[172] 


CHAP.  XXVIII.]  VACATING    DECREES.  [§  338. 

Acquiescence  in  the  decree  for  many  years  after  the  discovery 
of  the  fraud,  the  party  obtaining  the  decree  having  re-married 
in  the  meantime,  will  bar  relief.* 

§  338.     Decree  under  repealed  statute. 

A  decree  improvidently  entered,  under  a  statute  which  had 
been  repealed,  may  be  vacated.^ 

§  339.     Declaring  decree  of  other  state  void  not  unconstitutional. 

Where  a  decree  is  entered  by  a  court  which  had  no  juris- 
diction for  lack  of  domicil,  and  the  court  of  the  state  where  the 
party  was  domiciled  declares  it  void,  there  is  not  involved  the 
provision  of  the  Constitution  of  the  United  States  relating  to 
the  giving  of  full  faith  and  credit  to  acts  of  courts  of  other 
states.^" 

Leading  Cases. 

"It  incontestably  appeared,  from  the  testimony  already 
given,  that  both  the  defendant  and  his  said  wife,  Mrs.  Martha 
F.  Armington,  had  been  resident  citizens  of  this  state,  and 
domiciled  therein,  for  over  nine  years  prior  to  the  date  of  the 
decree,  and  that  they  were  both  actually  living  in  this  state 
at  the  time  of  its  entry.  It  did  not  appear,  nor  was  any  offer 
made  to  show  the  fact,  that  either  had  ever  been  domiciled, 
even  temporarily,  within  the  territory  of  Utah;  and  as  to 
Mrs.  Armington,  it  is  quite  clear  that  she  never,  at  any  time 
during  the  progress  of  the  proceedings  in  said  court,  was  out- 
side the  limits  of  this  state,  or  within  the  territorial  limits  of 
Utah.  As  to  Mr.  Armington,  the  most  that  can  be  claimed 
from  the  evidence  is  that  he  temporarily  left  his  residence  in 
Northfield,  in  this  state,  sometime  in  the  summer  of  1876,  and 
returned  in  August  or  September  of  that  year.     AVhere  he  was, 

sXicholson  v.  Nicholson,  113  Ind.  131,  15  X.  E.  223;  Holbrook  v.  Hol- 
brook,  114  Mass.  568;  Singer  v.  Singer,  41  Barb.  (X.  Y.)  139;  Potts  v.  Potts, 
10  Wkly.  Xotes  of  Cas.  (Pa.)  102;  Jones  r.  Jones,  78  Wis.  446,  47  N.  W.  728. 

9  Wales  V.  Wales,  119  Mass.  89. 

w  Andrews  v.  Andrews,  188  U.  S.  14,  47  L.  ed.  366. 

[  173  ] 


§  339.]     THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.    XXVIII. 

during  this  period,  does  not  affirmatively  appear;  but  it  does 
affirmatively  appear  that  he  has  resided  and  practiced  medicine 
in  Northfield  ever  since  November  in  that  year.  Upon  this 
evidence,  the  court  was  warranted  in  assuming  that  neither 
of  the  parties  ever  acquired  a  bona  fide  domicU  or  residence 
in  Utah,  and  that  both  were,  during  the  conduct  of  these 
divorce  proceedings,  domiciled  residents  of  this  state,  and 
subject  to  its  laws.  Upon  this  state  of  facts,  the  probate 
court  of  Utah,  whatever  may  have  been  the  extent  of  its 
jurisdiction  over  the  subject  of  divorce  under  the  local  laws 
of  that  territory  as  respects  its  citizens,  had  no  jurisdiction 
to  adjudicate  upon  the  marriage  relation  existing  between 
these  parties.  To  each  state  belongs  the  exclusive  right  and 
power  of  determining  upon  the  status  of  its  resident  and 
domiciled  citizens  and  subjects,  in  respect  to  the  question  of 
marriage  and  divorce,  and  no  other  state,  nor  its  judicial 
tribunals,  can  acquire  any  lawful  jurisdiction  to  interfere  in 
such  matters  between  any  such  subjects,  when  neither  of  them 
has  become  bona  fide  domiciled  within  its  limits;  and  any 
judgment  rendered  by  any  such  tribunal  under  such  circum- 
stances, is  an  absolute  nullity."  " 

"Conceding  this  to  be  the  true  rule  upon  the  subject,  and 
that  each  state  may  therefore  rightfully  declare  the  condition 
of  its  own  citizens  in  reference  to  the  marriage  relation,  and 
that,  consequently,  when  a  divorce  is  decreed  according  to  the 
local  law,  in  the  forum  of  the  parties'  domicil,  it  is  to  be 
regarded  in  all  other  jurisdictions  as  valid;  stUl  the  rule  applies 
only  to  the  case  of  one  actually  and  bona  fide  a  resident  animo 
manendi,  and  not  to  one  temporarily  there  for  a  transient 
purpose,  and  still  less  to  one  who,  in  fraud  of  the  law  of  his 
domicil,  resorts  thus  temporarily  to  the  foreign  tribunal  for 
the  express  purpose  of  evading  the  laws  of  his  own  jurisdiction, 

11  State  V.  Armington,  25  Minn.  29,  36. 
[174] 


CHAP.  XXVIII.]  VACATING    DECREES.  [§  339. 

by  procuring  a  divorce  there  for  a  cause  which  is  not  allowed 
in  the  domestic  forum."  ^^ 

"This  defendant  has  been  convicted  of  bigamy,  and  now, 
upon  exceptions,  asks  that  the  verdict  be  set  aside.  Both 
the  marriages  were  admitted.  The  first  took  place  in  1857; 
the  second  was  to  one  Minnie  Kopp,  in  August,  1871,  while 
the  first  wife  was  stUl  living.  The  defence  was,  that  before 
the  second  marriage  the  defendant  had  been  divorced  from 
his  first  wife,  on  her  application.  To  establish  this,  he  gave 
in  evidence  a  copy  of  the  record  of  a  proceeding  in  the  court 
of  common  pleas  of  Noble  county,  Indiana,  which  contained: 
1.  What  purported  to  be  a  complaint  of  Mary,  the  first  wife, 
against  the  defendant,  presented  at  the  October  term,  1870, 
averring  her  residence  in  Noble  county;  chargmg  defendant 
with  refusal  to  speak  with  or  treat  her  as  a  wife,  and  finally 
with  refusal  to  cohabit  with  her,  and  with  abandonment, 
and  praying  for  a  divorce;  2.  An  authority  from  the  defend- 
ant to  one  Goodwin,  an  attorney  of  Noble  county,  '  to  appear 
for  me  in  any  court  of  record  of  said  county,  and  answer  for 
me,  and  waive  process  that  my  wife,  Mary  Dawell,  may  pro- 
cure a  bill  of  divorce;'  3.  An  answer  by  Goodwin,  on  behalf 
of  defendant,  admitting  the  wife's  residence  in  Noble  county, 
but  denying  all  the  other  allegations  of  the  complaint;  4.  A 
judgment  of  the  court,  rendered  on  the  third  day  of  the  same 
October  term,  purporting  to  be  based  on  evidence,  and  de- 
claring the  marriage  dissolved. 

"This  expeditious  proceeding,  in  which  the  defendant,  in 
voluntarily  appearing,  declares  his  purpose  to  be  to  enable 
his  wife  to  obtain  a  divorce,  bears  upon  its  face  such  evi- 
dence of  collusion  as,  in  this  state,  would  justify  the  setting 
aside  of  the  decree,  whenever  attention  should  be  called  to 
the  facts;  and  we  do  not  doubt  that  such  would  be  the  case 
m  Indiana  also,  for  the  supreme  court  of  that  state  has  very 

12  Leith  V.  Leith,  39  X.  H.  20,  34. 

[175] 


§  339.]    THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.   XXVIII. 

carefully  laid  down  the  doctrine  that  divorces  by  collusion 
are  not  to  be  suffered  to  stand. — Scott  v.  Scott,  17  Ind.  309. 
But  until  the  decree  should  be  set  aside  or  reversed  by  the 
action  of  a  competent  court,  it  could  not  be  treated  as  void 
on  the  ground  here  indicated. 

"Now  I  understand  the  rule  to  be,  that  to  give  the  courts 
of  any  state  jurisdiction  over  the  marriage  relation  between 
a  husband  and  his  wife,  one  of  the  parties,  at  least,  must  have 
a  domicil  within  that  state.  Some  of  the  judicial  decisions 
make  further  requirements;  but  no  court  has  ever  held  that 
any  less  could  be  demanded.  It  is,  then,  and  must  be,  ad- 
mitted on  all  hands,  that  while  these  parties  had  their  resi- 
dence within  this  state,  the  courts  of  Indiana  had  no  authority 
to  consider  the  question  of  divorcing  them.  That  was  a  matter 
which  pertained  exclusively  to  the  authorities  of  this  state. 
Our  legislation  forbids  plural  marriages,  but  establishes  ex- 
ceedingly liberal  regulations  for  divorce,  under  which  parties 
who  are  wronged  in  their  marriage  relations,  are  enabled  to 
have  them  severed,  on  showing  cause.  But  we  do  not  think 
it  conducive  to  good  morals,  or  public  decency,  that  married 
parties  should  be  allowed  to  change  spouses  at  discretion,  or 
that  a  husband  who  had  tired  of  his  wife,  whose  charms  per- 
haps had  faded  in  the  bearing  and  nursing  of  his  children, 
should  be  at  liberty  at  any  time,  by  going  through  some  formal 
proceeding  in  court,  to  turn  her  out  of  his  doors,  that  he  might 
supplant  her  with  some  fresher  beauty.  All  our  legislation 
has  been  framed  in  the  belief  that  the  marriage  tie  should  be 
indissoluble,  except  upon  cause  shown;  and  of  the  sufficiency 
of  this  cause  the  parties  themselves  are  not  allowed  to  be 
the  judges.  This  is  the  view  that  obtains  in  this  state.  It 
may  be  right,  or  it  may  be  wrong.  There  have  been  those 
within  the  limits  of  the  state  who  thought  polygamy  proper, 
and  others  who  have  believed  that  marriage  should  be  only 
during  the  good  pleasure  of  the  parties;  but  the  prevailing 
sentiment  has  condemned  these  notions  as  licentious  and 
[176] 


CHAP.  XXVIII.]  VACATING    DECREES.  [§  339. 

demoralizing,  and  has  forbidden,  under  severe  penalties,  their 
practical  realization  within  this  state.  If  other  states  or 
countries  hold  different  opinions,  they  can  embody  them  in 
their  own  legislation,  if  they  see  fit;  but  it  will  be  conceded 
that  they  have  no  right  to  invade  our  jurisdiction  to  right  any 
wrongs  which  they  may  suppose  to  exist  in  our  laws  upon  this 
subject. 

"It  is  clear,  then,  that  the  court  in  Indiana  had  no  author- 
ity to  decree  a  divorce  between  these  parties.  Any  wrong 
against  the  marriage  relation  between  them,  concerned  this 
state,  and  not  that;  and  was  inquirable  into  by  the  courts 
of  Michigan,  and  not  by  those  of  Indiana.  But  if  the  decree 
was  granted  without  authority,  why  is  it  not  absolutely  and 
for  aU  purposes  void? 

''To  this  it  is  replied,  that  the  record  shows  a  finding  by 
the  Indiana  court  that  the  parties  resided  in  that  state,  and 
that  this  finding  is  conclusive  upon  the  question  of  jurisdic- 
tion, except  on  motion  in  the  same  court  to  vacate  the  decree. 
That  doctrme  brings  us  to  this:  That  although  the  Indiana 
court  had  no  jurisdiction  to  divorce  two  of  our  citizens,  yet, 
having  assumed  to  do  so,  on  the  false  statement  of  one  or  both 
of  the  parties,  that  they  resided  in  Indiana,  the  decree  is 
absolutely  binding,  unless  the  court  sees  fit  to  vacate  it.  In 
other  words,  the  marriage  relation  between  two  of  our  citizens 
depends  upon  the  discretion  of  a  foreign  court,  which  by  law 
has  no  concern  with  it  whatever.  Such  a  doctrine  is  not  only 
monstrous  in  its  results,  but  it  has,  as  I  conceive,  no  support 
whatever  in  authority.  It  has  been  held  invariably,  that  a 
foreign  judgment  is  open  to  be  assailed  by  evidence  showing 
a  want  of  jurisdiction.  The  only  question  in  dispute  has  been, 
whether  the  recitals  in  the  record  of  the  appearance  of  the 
parties  could  be  disproved  for  this  purpose — some  cases  hold- 
ing that  they  could,  others  that,  in  the  case  of  a  judgment  of 
a  sister  state,  they  could  not.  That  particular  question,  as 
an  abstract  one,  I  do  not  discuss,  because  I  conceive  there  is  a 
12  .  [  177  ] 


§  339.]     THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVIII. 

difference  between  disproving  recitals  of  jurisdiction  of  the 
parties  and  jurisdiction  of  the  subject-matter  in  divorce  cases, 
which  is  the  point  involved  here.  If  this  might  not  be  dis- 
proved, a  party  seeking  a  divorce  need  only  apply  for  it  in 
some  distant  country,  and  find  suitable  tools  to  aid  his  fraud, 
and  the  difficulty  and  expense  attending  a  proceeding  to 
exhibit  the  facts  to  the  satisfaction  of  the  same  court  would, 
in  most  cases,  be  so  great  as  absolutely  to  preclude  the  at- 
tempt. Thus  it  would  be  easy  to  give  to  the  courts  of  any 
country  whose  jurisprudence  we  recognize  as  that  of  a  civil- 
ized people,  the  power  to  divorce  one  of  our  citizens,  under 
circumstances  of  wrong  and  outrage  upon  the  other  party, 
and  yet  no  practicable  remedy  be  open  to  the  party,  wronged. 
And  even  if  a  practicable  remedy  were  open  to  the  party,  if 
he  should  see  fit  not  to  pursue  it,  there  would  be  none  what- 
ever for  the  state  among  whose  citizens  disorder  and  license 
would  thus  be  introduced. 

"But  it  is  said  that  if  the  parties  appear  in  the  case,  the 
question  of  jurisdiction  is  precluded.  That  might  be  so  if 
the  matter  of  divorce  was  one  of  private  concern  exclusively. 
But  such  is  not  the  case  under  our  laws,  nor  will  it  ever  be 
untn  it  comes  to  be  understood  that  parties  have  the  right 
to  marry  and  unmarry  at  pleasure,  and  that  if  they  choose 
to  trade  spouses,  it  is  the  concern  of  nobody  but  themselves. 
Such  an  understanding  would  require  a  considerable  change 
in  the  existing  laws  of  this  state.  As  those  laws  now  are, 
there  are  three  parties  to  every  divorce  proceeding;  the  hus- 
band, the  wife,  and  the  state;  the  first  two  parties  representing 
their  respective  interests  as  individuals;  the  state  concerned 
to  guard  the  morals  of  its  citizens,  by  taking  care  that  neither 
by  collusion  nor  otherwise,  shall  divorce  be  allowed  under  such 
circumstances  as  to  reduce  marriage  to  a  mere  temporary 
arrangement  of  conscience  or  passion.  The  state  of  Indiana 
has  recognized  this  fact,  in  requiring  an  appearance  in  divorce 
suits  by  a  public  officer,  whose  duty  it  should  be  to  see  that  a 
[178] 


CHAP.  XXVIII.]  VACATING    DECREES.  [§  339. 

legal  case  was  established  (2  Rev.  Stat.  p.  238);  and  though 
we  have  no  similar  statutory  requirement  in  this  state,  we 
have  always  recognized  the  principle,  and  the  court  has  con- 
sidered it  its  duty  to  inquire  specially  into  collusion  in  every 
case,  and  to  deny  a  divorce  wherever  collusion  appeared, 
even  though  a  satisfactory  case  might  seem  to  have  been 
-prima  fade  established.  Such  being  the  case,  suppose  we 
admit  that  the  parties  to  the  marriage  may  be  boimd  by 
their  voluntary  appearance  in  their  foreign  jurisdiction;  how 
does  that  affect  the  present  case?  How  and  in  what  man- 
ner did  the  Indiana  court  obtain  jurisdiction  of  the  third 
party  entitled  to  be  heard  in  this  proceedmg;  that  is  to  say, 
of  the  state  of  Michigan?  Has  this  state  ever,  directly  or 
indirectly,  consented  that  a  matter  of  high  interest  to  itself 
and  no  way  concerning  the  people  of  Indiana,  shall  be  tried 
by  the  tribunals  of  the  latter  state?  Has  it  ever  waived  its 
right  to  govern  the  domestic  relations  of  its  own  citizens, 
and  consented  that  an  inferior  judicial  officer  of  another  state, 
in  whose  choice  its  electors  have  not  been  consulted,  may 
exercise  over  them,  with  or  without  the  consent  of  parties, 
a  power  of  final  control?  Those  who  insist  upon  the  validity 
and  binding  force  of  this  decree,  should  be  able  to  point  out 
how  and  in  what  manner,  by  what  written  or  oral  consent, 
or  through  what  neglect  or  default,  this  third  party  has  lost 
its  right  to  have  its  own  concerns  passed  upon  by  its  owm 
courts,  or  has  handed  them  over  to  a  foreign  authority.  Noth- 
ing in  this  record  shows  such  consent  or  such  waiver,  even  if  it 
were  competent  for  the  state  to  give  it ;  all  that  appears  here, 
is  falsehood  and  fraud,  practiced  and  employed  upon  the 
tribunals  of  another  state,  in  order  to  induce  them  to  take 
cognizance  of  a  controversy  which  belongs  to  the  tribunals 
of  this  state;  but  which,  for  some  unexplained  reason,  cer- 
tainly not  an  honest  one,  the  parties,  or  the  acting  one  of  them, 
are  unwilling  to  submit  to  the  proper  court. 

"This  third  party,  therefore,  not  having  consented  to  the 

[  179  ] 


§  339.]     THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [cHAP.  XXVIII. 

proceedings,  expressly  or  impliedly,  and  the  foreign  tribunal 
having  confessedly  no  authority  over  the  subject-matter, 
unless  it  could  obtain  it  by  consent,  there  would  seem  to  be 
very  little  more  to  be  said  upon  this  case.  As  to  the  state, 
at  least,  the  divorce  must  be  void;  and  the  state  has  very 
properly  treated  it  as  void,  by  instituting  this  prosecution. 
And  the  state  has  obviously  no  other  remedy  for  the  wrong 
done  it;  for,  as  a  state,  it  cannot  appear  in  the  foreign  court 
to  ask  that  the  fraudulent  divorce  be  vacated. 

"  Our  attention  has  also  been  called  to  the  recent  case  of 
Kinnier  v.  Kinnier,  45  N.  Y.  535,  which  is  supposed  to  over- 
rule a  considerable  number  of  former  New  York  cases  de- 
cided in  harmony  with  the  views  I  have  here  expressed.  If 
it  does  overrule  them,  it  is  opposed  to  a  very  great  weight 
of  American  authority,  and  I  refer  to  the  following  cases  in 
support  of  this  opinion:  Barber  v.  Root,  10  Mass.  260;  Han- 
over V.  Turner,  14  Mass.  227;  Lyon  v.  Lyon,  2  Gray,  367; 
Chase  v.  Chase,  6  Gray,  157;  Smith  v.  Smith,  13  Gray,  209; 
Shannon  v.  Shannon,  4  Allen,  134;  Leith  v.  Leith,  39  N.  H. 
20;  Pawling  v.  Bird's  Ex'rs,  13  Johns.  192;  Borden  v.  Fitch, 
15  Johns.  121;  Vischer  v.  Vischer,  12  Barb.  640;  McGiffert  v. 
McGiffert,  31  Barb.  69;  Kerr  v.  Kerr,  41  N.  Y.  272;  Todd  v. 
Kerr,  41  Barb.  317.  And  see  Maguire  v.  Maguire,  7  Dana, 
181;  Ditson  v.  Ditson,  4  R.  I.  87;  Smith  v.  Smith,  4  Greene 
(Iowa),  261;  Thompson  v.  State,  28  Ala,  12;  Parish  v.  Parish, 
32  Ga.  653. 

"But  in  terms  it  overrules  only  the  case  of  Jackson  v.  Jack- 
son, 1  Johns.  424,  in  which  the  court  held  that  the  wife  could 
not  acquire  a  domicil  separate  from  her  husband — in  which 
I  agree  that  it  erred — and  also  that  the  parties  were  not 
bound  by  a  decree  for  alimony  made  between  them  in  a  case 
in  which  they  had  voluntarily  appeared  in  another  state, 
— in  which  particular  it  is,  perhaps,  opposed  to  Cheever  v. 
Wilson,  above  cited.  In  this  regard  I  have  no  occasion  to 
question  in  the  least,  the  cause  of  Kinnier  v.  Kinnier.  But 
[180] 


CHAP.  XXVIII.]  VACATING    DECREES.  [§  339. 

some  of  the  language  of  that  case  does  not  appear  to  me  to 
have  been  weighed  and  considered  with  the  attention  which 
important  cases  usually  receive  in  that  learned  court.  The 
question  arose  upon  demurrer  to  a  complaint  filed  by  one 
who  had  married  a  woman  whose  previous  husband,  it  was 
alleged,  had  procured  a  divorce  from  her  by  collusion,  in  a 
state  distant  from  that  in  which  they  resided.  The  purpose 
was  to  annul  the  second  marriage.  The  complaint  alleged 
that  the  first  husband  went  to  such  distant  state  in  order  to 
procure  a  divorce  for  a  cause  which  would  not  be  recognized 
in  the  state  of  his  residence,  and  in  order  to  evade  the  laws 
of  that  state;  that  the  wife  followed  him,  and  by  collusion 
the  divorce  was  procured.  The  court  held  that  this  com- 
plaint did  not  show  the  divorce  to  have  been  invalid.  It  is 
said  (p.  539):  'The  court  had  jurisdiction  of  the  subject- 
matter  of  the  action;  that  is,  it  had  jurisdiction  to  decree 
divorces  according  to  the  laws  of  that  state;  and  every  state 
has  a  right  to  determine  for  itself  the  ground  upon  which 
it  will  dissolve  the  marriage  relation  of  those  within  its  juris- 
diction. The  court  had  also  jurisdiction  of  the  parties  by 
the  voluntary  appearance  of  the  defendant.'  With  great  re- 
spect, it  appears  to  me  there  are  several  misconceptions  in 
this  statement.  The  'subject-matter  of  the  action,  was  not 
the  question  of  divorce  in  general,  but  was  the  marriage 
relation  between  the  very  parties  to  that  suit;  and  that  sub- 
ject-matter neither  was,  nor  could  be,  within  the  jurisdiction 
of  the  court,  if  the  parties  had  no  domicil  within  the  state 
from  which  the  court  derived  its  powers;  for  the  obvious 
reason  that  the  state  itself  having  no  jurisdiction  over  the 
marriage  relation  between  such  parties,  could  confer  none 
upon  its  courts.  Furthermore,  it  is  not  true,  that  'every 
state  has  a  right  to  determine  for  itself  the  ground  upon  which 
it  will  dissolve  the  marriage  relation  of  those  within  its  juris- 
diction,' if  by  this  is  included  those  who  are  only  in  person 
within  its  limits,  but  have  their  residence  elsewhere.     Will  it 

[  isi  ] 


§  339.]     THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXVllI. 

be  seriously  claimed  that  any  state  might  enact  a  law  that 
citizens  of  other  states  might  be  divorced  at  pleasure  in  its 
courts,  by  simply  applying  in  person  for  the  decree?  Would 
not  every  other  state  be  likely  to  protest,  with  emphasis  and 
indignation,  that  any  such  law  was  an  invasion  of  their  sov- 
ereignty, and  an  attempt,  by  indirect  methods,  to  control  the 
domestic  relations  of  their  citizens?  But  if  such  a  law  could 
not  be  valid,  how  can  it  be  truly  said,  that  a  court,  whose 
authority  cannot  possibly  be  broader  than  that  of  the  state 
which  created  it,  had  'jurisdiction  of  the  parties  by  the  vol- 
untary appearance  of  the  defendant,'  when  such  voluntary 
appearance  could  no  more  bring  the  subject-matter  of  the  suit 
within  the  jurisdiction  of  the  court,  than  in  ejectment  it  could 
bring  the  land  from  a  distant  state,  and  enable  the  court  to 
pass  upon  the  right  to  its  possession.  The  fallacy  which 
runs  through  this  New  York  decision,  though  not  distinctly 
expressed,  is,  that  divorce  is  a  matter  which  concerns  the 
parties  only,  and  consequently  they  may  carry  the  cause  of 
action  with  them  wherever  they  go,  notwithstanding  their 
domicil  may  remain  unchanged.  This  fallacy,  I  trust,  is 
sufficiently  exposed  in  what  has  already  been  said. 

"The  subject-matter  of  a  divorce  suit  is  just  as  much  local 
as  the  subject-matter  of  a  suit  in  ejectment.  It  is  the  status 
of  the  parties,  permitted,  regulated  and  controlled  by  the 
law  of  their  domicil,  which  is  to  be  passed  upon  and  deter- 
mined; and  the  appearance  of  the  parties  in  a  foreign  juris- 
diction does  nothing  whatever  towards  transferring  this  sub- 
ject-matter. It  can  not  by  any  possibility  be  brought  under 
the  cognizance  of  a  foreign  court;  and  it  is  nothing  less  than 
an  absurdity  to  ask  of  us  to  recognize  and  give  effect  to  a 
decree  of  divorce  granted  abroad,  by  a  court  without  authority, 
in  evasion  of  our  laws,  and  in  fraud  or  contempt  of  our  juris- 
diction. To  permit  one  of  our  own  citizens  who  had  obtained 
a  decree  of  divorce  abroad,  to  turn  his  wife  out  of  doors  in  this 
state  under  it,  would  be  scarcely  less  preposterous  than  to 
[182] 


CHAP.  XXVIII.]  VACATING    DECREES.  [§  339. 

suffer  a  wTit  of  possession  to  be  executed  in  this  state  on  a 
judgment  in  ejectment  rendered  abroad.  If,  however,  the 
absurdity  of  the  case  were  its  worst  feature,  the  public  would 
be  less  concerned  with  it  than  they  are  now;  but  we  cannot 
shut  our  eyes  to  the  fact,  that  these  divorces  are  always 
fraudulent,  are  often  obtained  by  perjury,  in  many  cases  are 
had  secretly,  and  without  any  suspicion  on  the  part  of  one 
party  that  such  a  proceeding  is  being  taken,  and  that  they 
tend,  in  defiance  of  our  laws,  to  make  marriage  a  mere  pro- 
visional arrangement,  which  the  parties  may  break  up  at  will. 
Moreover,  the  foreign  court  has  no  power  to  make  such  pro- 
vision for  the  wife  and  children  as,  in  many  cases,  would  be 
necessary  to  prevent  their  being  thrown  upon  the  charities 
of  the  world,  and  if  it  had,  it  would  generally  be  kept  in  ignor- 
ance of  the  facts,  and  therefore  incompetent  to  make  such 
provision.  Such  circumstances  are  not  exceptional;  when  resi- 
dents of  our  state  find  its  liberal  divorce  laws  insufficient  for 
their  purposes,  and  resort  to  a  foreign  jurisdiction,  it  is  gene- 
rally because  they  seek  to  accomplish  something  which  no 
court,  fully  possessed  of  the  facts,  could  honestly  grant,  and 
to  which,  consequently,  deception  and  fraud  are  essential, 
and  in  general,  perjury  also."  ^^ 

*'It  appears  by  the  record  that  the  divorce  was  granted  in 
a  suit  between  two  persons,  neither  of  whom  was,  at  the 
time  of  the  proceeding,  a  resident  of  Utah,  or  within  the 
boundaries  of  the  territory,  nor  had  previously  been,  but 
both  of  whom  were  residents  and  citizens  of  a  state  in  the 
Union.  Neither  of  the  parties  had  placed  himself  or  her- 
self under  the  jurisdiction  of  Utah,  Such  being  the  case, 
it  is  well  established  that  the  court  in  Utah  had,  and  could 
have,  no  jurisdiction  to  grant  the  divorce  in  question,  and 
that  the  same  is  inoperative  and  utterly  void.  This  is  a 
question  to  be  decided  by  the  jus  gentium,  the  law  of  nations, 
13  People  V.  Dawell,  25  Mich.  247. 

[183] 


§  339.]     THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [cHAP.  XXVIII. 

in  respect  to  rights,  are  equal,  and  that  each  is  sovereign 
within  its  own  territory,  with  jurisdiction  over  the  persons  and 
property  therein.  1  Kent  Com.  21.  Hood,  when  the  divorce 
in  question  was  granted,  was  under  a  jurisdiction  other  than 
that  of  Utah.  It  is  further  settled  that  the  states  of  the  Union, 
as  between  themselves,  are  sovereignties.  In  determining  this 
question  of  jurisdiction  therefore,  we  have  only  to  enquire 
what  jurisdiction  the  state  of  Indiana  has  over  the  people 
and  property  within  the  territory  of  Utah;  for,  on  this  point, 
the  states  and  territories  are  severally  equal.  What  jurisdic- 
tion Illinois  can  exercise  over  residents  and  property  in  Indi- 
ana, Indiana  can  exercise  over  residents  and  property  in 
Illinois. 

"To  place  this  matter  in  another  light,  a  state  may  au- 
thorize divorces  to  be  granted  by  legislative  act.  Suppose, 
then,  that  the  legislature  of  Utah  had  granted  this  divorce 
(neither  of  the  parties  being  citizens  or  inhabitants  of  the 
territory),  severing  a  domestic  relation  between  two  citi- 
zens of,  and  residents  in,  Indiana,  would  any  one  claim  that 
the  divorce  would  be  valid?  If  it  would  be,  then  it  follows 
that  the  State  of  Indiana  can  confer  upon  her  legislature 
power  to  divorce,  by  statutory  enactment,  husbands  and 
wives,  citizens  and  residents  of  Utah,  or  of  Illinois  or  Ohio. 
And  if  so,  what  becomes  of  the  doctrine  of  the  sovereignty  of 
states  and  nations  within  their  own  respective  territories? 
And  if  the  legislature  of  Utah  can  not  grant  divorces  to  resi- 
dents and  citizens  of  foreign  states,  it  can  not  confer  such 
power  upon  the  judiciary  of  the  state.  Certainly,  as  a  general 
proposition,  states  and  nations  can  not  exercise  such  extra- 
territorial jurisdiction.  But  we  need  not  enlarge  upon  these 
established  elementary  principles.  The  case  before  us  is  too 
plain  to  admit  of  argument.  It  is  shortly  this:  Hood  desired 
to  obtain  a  divorce  from  his  wife.  Neither  of  the  parties  was 
under  the  jurisdiction  of  Utah.  The  petition  of  Hood  and  the 
decree  of  divorce  expressly  state  this  fact.  If  he  was  not 
[184] 


CHAP.  XXVIII.]  VACATING    DECREES.  [§340. 

a  citizen  and  resident  of  Utah,  he  was  of  some  other  state 
or  nation.  Still  the  court  of  Utah  grants  a  divorce  to  a  man 
who  informs  it,  in  his  appHcation,  that  he  is  under  a  juris- 
diction other  than  that  of  the  territory  of  Utah,  and  that 
he  is  not  subject  to  hers.  The  divorce  manifestly  was  granted 
in  violation  of  the  sovereignty  and  jurisdiction  of  another 
state,  and  in  violation  of  the  plainest  principles  of  international 
and  constitutional  law.  The  provision  in  the  statute  of  Utah, 
authorizing  her  courts  to  grant  divorces  to  citizens  of  foreign 
states  and  nations,  who  were  not,  but  desired  to  become, 
residents  of  Utah,  was  ultra  vires,  and  void."  ^'* 

§  340.     Objection  to  decree  nisi  becoming  absolute. 

In  some  states  where  decrees  nisi  are  granted,  either  party 
may  apply  to  have  it  made  absolute,  and  in  some,  like  Massa- 
chusetts, it  may  become  absolute  after  the  lapse  of  a  certian 
time  without  any  proceedings.  Unless  there  is  some  such 
provision,  only  the  party  in  whose  favor  the  decree  has  been 
entered  can  apply  to  have  it  made  absolute. ^^ 

§  341.     Death  of  either  party  not  a  bar. 

The  death  of  either  party  is  not  a  bar  to  a  petition  to  vacate 
a  decree  of  divorce,  when  the  fraud,  collusion,  or  lack  of  juris- 
diction by  which  the  decree  was  obtained  can  be  clearly 
shown.  ^^ 

§  342.     By  the  court  on  its  own  motion. 

The  court  which  entered  the  decree  may,  in  the  exercise  of 
its  sound  discretion,  during  the  same  term,  on  its  own  motion, 
vacate  its  own  decrees. ^^ 

"  Hood  V.  State,  56  Ind.  263,  26  Am.  Rep.  21. 

15  Daspit  V.  Ehringer,  32  La.  1174;  Mazerat  v.  Godefroy,  48  La.  Ami.  824, 
19  So.  756. 

loBomsta  v.  Johnson,  38  Minn.  230,  36  N.  W.  341;  Fidelity  Ins.  Co.'s 
Appeal,  93  Pa.  St.  242;  Boyd's  Appeal,  38  Pa.  St.  241;  Johnson  v.  Coleman, 
23  Wis.  452,  99  Am.  Dec.  193. 

17  Mclntyre  v.  Mclntyre,  9  Misc.  (X.  Y.)  252;  BrowTi  v.  Brown,  53  Wis. 
29,  9  N.  W.  790.     See  Morris  v.  Morris,  60  Mo.  App.  86. 

[185] 


§  344.]        THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXIX. 


CHAPTER    XXIX. 


EFFECT  OF  DIVORCE  ON  PROPERTY  RIGHTS. 


343. 
344. 
345. 
346. 
347. 


Partial  and  absolute  divorce. 
Rights  of  husband. 
Rights  of  wife. 
Marriage  settlement. 
Rights  in  property. 


§  348.  Divorce    as    affecting    wife's 
right  to  insurance  upon  her 
husband's  life. 
349.  Effect   of   divorce  on  home- 
stead right. 


§  343.     Partial  and  absolute  divorce. 

At  common  law,  and  in  the  absence  of  any  statute,  an 
absolute  divorce  was  a  severance  of  all  property  rights  de- 
pendent upon  the  marriage  relation  and  not  absolutely  vested. 
A  divorce  from  bed  and  board  was  not  such  a  severance  of 
the  relation  of  the  parties  as  would  bar  dower.  As  adultery 
was  not  a  ground  for  divorce,  the  wife  could  not  be  barred 
for  this  cause. ^  Under  statutes  governing  divorce,  adultery 
is  a  cause  in  all  the  states  where  divorces  are  granted,  so  that 
such  questions  can  not  arise  under  modern  rules,  because  an 
absolute  divorce  is  obtained  which  bars  any  rights,  and  unless 
this  is  done  there  is  no  change  in  property  rights.^ 


§  344.     Rights  of  husband. 

The  right  in  his  wife's  estate  that  a  husband  had  by  the 
curtesy  would  seem  to  be  abolished  by  an  absolute  divorce 
under  modern  statutes,  except  that  the  court  may  decree  to 
the  husband  such  property  as  may  be  necessary  for  the  sup- 
port of  the  minor  children  of  such  marriage.  But  where  real 
estate  of  the  wife  has  been  conveyed  in  trust  for  her  benefit 

1  Lakin  v.  Lakin,  84  Mass.  4.5;  Reynolds  v.  Reynolds,  24  Wend.  (N.  Y.) 
193;  Bryan  v.  Batcheller,  6  R.  I.  543,  78  Am.  Dec.  454. 

2  Hood  V.  Hood,  110  Mass.  463;  Barber  v.  Root,  10  Mass.  260;  Barrett 
V.  Failing,  111  U.  S.  523,  28  L.  ed.  505. 

[186] 


CHAP.  XXIX.]    EFFECT  OF  DIVORCE  ON  PROPERTY  RIGHTS.  [§  345. 

during  life,  with  a  life  interest  in  the  husband,  should  he  sur- 
vive, it  was  held  that  he  lost  no  right  in  such  a  settlement  by 
an  absolute  divorce,  and  he  would  be  entitled  to  the  life  estate 
if  he  survived.^ 

§  345.   Rig-Ms  of  wife. 

The  rights  of  a  divorced  wife  are  generally  regulated  by 
statute.  When  the  statute  grants  the  wife  dower  after  divorce 
"as  if  the  husband  were  dead,"  it  is  construed  to  mean  dower 
in  the  lands  whereof  the  husband  was  seized  at  any  time  dur- 
ing coverture  and  not  those  remaining  in  his  hands  at  time  of 
the  decree.  In  Massachusetts,  dower  is  not  awarded  by  a 
divorce  court,  but  the  w^ife  must  proceed  by  writ  of  entry.'' 

§  346.     Marriage  settlement. 

The  provisions  contained  in  a  deed  of  marriage  settlement 
are  not  affected  by  the  general  rule  of  law  governing  absolute 
divorce,  and  in  the  absence  of  any  provisions  to  that  effect 
in  the  settlement,  the  husband's  rights  in  the  property  of  his 
wife  are  not  affected,^ 

§  347.     Rights  in  property. 

Generally  speaking,  after  a  divorce  husband  and  wife  are 
placed  on  substantially  an  equal  footing  as  far  as  property 
rights  are  concerned;  both  can  sue  or  be  sued,  or  dispose  of 
their  property  by  will  or  otherwise  as  they  see  fit,  without 
consulting  the  other;  except  that  before  the  decree  is  made 
absolute  neither  can  give  a  clear  title  to  real  estate  without 
the  signature  of  the  other.^ 

§  348.     Divorce  as  affecting  wife's  right  to  insurance  upon  her  hus- 
band's life. 
Where  a  married  woman  is  named  as  a  beneficiary  in  a 

sBabcock  v.  Smith,  39  Mass.  61. 

4  Smith  V.  Smith,  13  Mass.  231;  Davol  v.  Howland,  14  Mass.  219. 
sBabcock  v.  Smith,  39  Mass.  61. 

8  Rosholt  V.  Mehus,  3  N.  D.  .513,  57  N.  W.  783,  23  L.  R.  A.  239;  Over- 
hiser  v.  Overhiser,  63  Ohio  St.  77,  57  N.  E.  965,  50  L.  R.  A.  552. 

[187] 


§  349.]         THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXIX. 

policy  of  insurance  on  the  life  of  her  husband,  she  is  entitled 
to  the  proceeds  of  the  policy,  notwithstanding  a  divorce  hav- 
ing been  obtained  by  her  before  his  death.''  In  Tyler  v.  Odd 
Fellows'  Mutual  Relief  Association  a  benefit  association  was 
sued  to  determine  the  beneficiary  of  a  deceased  member,  his 
divorced  wife  having  originally  been  designated  as  the  bene- 
ficiary. The  language  of  the  agreement  of  association  stated 
that  benefits  would  be  paid  to  "the  families  of  deceased  mem- 
bers, or  their  heirs,"  and  also  "  to  the  widow  of  the  designator," 
on  the  death  of  the  heirs  or  legal  assignees.  It  was  held  that 
the  divorced  wife  was  not  a  member  of  the  family  and  was  not 
the  widow  under  such  a  designation  of  legal  beneficiary.* 

§  349.     Effect  of  divorce  on  homestead  right. 

It  has  been  held  that  where  a  married  woman  left  the  home 
of  herself  and  husband,  the  title  to  which  was  in  the  husband, 
and  remained  away  nearly  three  years  before  claiming  any 
homestead  interest  in  the  property,  and  the  husband  remained 
in  constant  occupancy  of  the  land  keeping  his  home  thereon, 
such  absence  alone  will  not  constitute  an  abandonment  by 
the  wife  of  her  homestead  rights.  In  divorce  proceedings  it 
is  competent  for  the  court  to  assign  the  homestead  to  the 
innocent  party,  either  absolutely  or  for  a  limited  period;  but, 
where  the  decree  in  the  divorce  proceedings  is  silent  upon  the 
question,  the  homestead  will,  upon  the  dissolution  of  the  mar- 
riage, remain  in  the  possession  of  the  party  holding  the  legal 
title  thereto,  discharged  from  all  homestead  rights  or  claims 
of  the  other  party.^ 

7  Overhiser  v.  Overhiser,  63  Ohio  St.  77,  57  N.  E.  965,  50  L.  R.  A.  552. 

8  Tyler  v.  Odd  Fellows  Mut.  Relief  Assn.,  145  Mass.  134,  13  N.  E.  360. 

9  Rosholt  V.  Mehus,  3  N.  D.  513,  57  N.  W.  783,  23  L.  R.  A.  239  and  note. 


[188] 


CHAP.  XXX,1 


FOREIGN   DIVORCES. 


[§  350. 


CHAPTER  XXX. 


FOREIGN    DIVORCES. 


350.  Validity  of  a  divorce  granted 

in  another  state. 

351.  Validity  of  a  divorce  granted 

in  a  foreign  country. 

352.  Rights  under  foreign  alimony 

decree. 


§  353.  Marriage    under    foreign    di- 
vorce. 

354.  Foreign  decrees  as   to  prop- 

erty. 

355.  Prohibition  of  re-marriage. 


§  350.     Validity  of  a  divorce  granted  in  another  state. 

A  decree  of  divorce  obtained  without  fraud,  in  any  state  or 
territory  where  the  plaintiff  lived  and  had  an  actual  domicil 
is  vahd  everywhere.  A  divorce  dissolving  a  marriage,  if 
valid  where  decreed,  is  conclusive  on  all  the  world.  This  is 
the  law  as  held  by  the  Supreme  Court  of  the  United  States.^ 
A  judgment  of  any  court  of  record  has  the  same  credit,  validity, 
and  effect  in  every  other  state  which  it  had  in  the  court  where 
rendered.^ 

The  doctrine  of  the  last  paragraph  is  denied  in  New  York 
and  two  or  three  other  states,  which  hold  that  a  divorce  de- 
creed in  any  other  state  does  not  affect  the  status  of  a  li- 
bellee  not  domiciled   in  the  state  decreeing  it.^ 

Even  a  review  of  a  judgment  of  divorce  granted  in  another 
state  cannot  be  had.^    A  decree  of  divorce  granted  in  the  same 

1  Cheever  v.  Wilson,  9  Wall.  (U.  S.)  108,  19  L.  ed.  604;  Barber  v.  Barber, 
21  How.  (U.  S.)  591,  16  L.  ed.  226;  Bigelow,  Estoppel,  153. 

2  Armstrong  v.  Car.son,  2  Dall.  (U.  S.)  302,  1  L.  ed.  391. 

3  People  V.  Baker,  76  N.  Y.  78,  32  Am.  Rep.  274.  See  also  Doughty  v. 
Doughty,  28  N.  J.  Eq.  581;  Flower  v.  Flower,  2  N.  J.  Eq.  152;  Harris  i'. 
Harris,  115  N.  C.  .587,  20  S.  E.  187;  Colvin  v.  Reed,  55  Pa.  St.  375;  Cook 
V.  Cook,  56  Wis.  195,  14  N.  W.  33,  443.    See  Appendix,  p.  459. 

*  Hill  V.  Hill,  28  Barb.  (N.  Y.)  23;  Kinnier  v.  Kinnier,  58  Barb.  (N.  Y.) 
424. 

[189] 


§  350.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXX. 

state  cannot  be  set  aside  or  annulled  upon  an  original  bill 
of  review,  even  if  the   court  granting   the  divorce  was  not 
fully  advised  of  all  the  facts  in  the  case.^     It  is  to  be  ob- 
served that  the  decisions  apply  only  to  decrees  entered  by 
courts  of  competent  jurisdiction,  having   jurisdiction  of   the 
parties,  and  where  the  decree  was  obtained  without  fraud. ^ 
A  decree  obtained  through  fraud  may  be  reviewed  and  set  at 
naught  anywhere  and  at  any  time,  and  the  court  reviewing  the 
decree  may  inquire  into  all  of  the  circumstances  in  order  that 
it  may  determine  if  there  was  fraud  or  not.     No  court  can  en- 
ter a  vaUd  decree  when  the  party  does  not  have  a  bona  fide 
residence  within  the  state,  with  the  intention  of  remaining 
within  the  state.     If  a  decree  is  obtained  while  one  has  a  tem- 
porary residence  within  the  state,  a  residence  obtained  for  the 
express  purpose  of  obtaining  a  divorce,  the  decree  will  be  fraudu- 
lent and  void.''      But  a  decree  of    divorce  fairly  obtained  is 
valid,  and  may  be  enforced  anywhere.     In  Massachusetts,  it 
has  been  held  that  where  a  husband,  whose  wife  is  hving  apart 
from  him,  without  justifiable  cause,  removes  from  Massachu- 
setts to  another  state  and  acquires  a  domicil  there,  without 
the  purpose  of  obtaining  a  divorce,  and  afterwards  obtains  a 
decree  of  divorce  in  that  state,  according  to  the  laws  thereof, 
and  after  notice  to  her  by  leaving  a  summons  at  her  abode  in 
Massachusetts  and  by  pubhcation  in  a  newspaper  in  the  other 
state,  the  courts  of  that  state  have  jurisdiction  of  the  cause 
and  of  both  the   parties,  and  the  decree  of  divorce  is  valid 
and  effectual  in  Massachusetts  as  to  all  persons,  although  the 
wife  was  never  in   the  other  state,  had  no  settlement  there 
derived  from  her  parents  or  ancestors,  never  appeared  in  the 
suit  there,  had  no  knowledge  or  information  that  he  contem- 
plated going  to  that  state,  or  that  he  had  left  Massachusetts, 

5  Parish  v.  Parish,  9  Ohio  St.  534. 

6  Adams  v.  Adams,  51  N.  H.  388,  12  Am.  Rep.  134;  Singer  v.  Singer,  41 
Barb.  (N.  Y.)  139;  Boyd's  Appeal,  38  Pa.  St.  241. 

7  Andrews  v.  Andrews,  188  U.  S.  14,  47  L.  ed.  366. 

[190] 


CHAP.  XXX.]  FOREIGN    DIVORCES.  [§  351. 

till  after  he  had  filed  his  libel  for  divorce,  and  was  never  pro- 
vided by  him  with  a  home  or  support  in  the  other  state,  or 
requested  or  furnished  with  means  by  him  to  go  to  that  state, 
and  was  without  such  means. ^  But  where  a  man  hved  with 
his  wife  in  Pennsylvania,  removed  to  St.  Louis,  Mo.,  and,  claim- 
ing to  have  become  a  citizen  of  Missouri,  obtains  a  divorce 
there,  the  Pennsylvania  court  held  that  such  decree  was  void 
in  Pennsylvania  as  to  the  wife,  the  Missouri  court  never  hav- 
ing jurisdiction  over  her.^ 


§  351.     Validity  of  a  divorce  granted  in  a  foreign  country. 

A  divorce  granted  in  a  foreign  country  against  a  man  who 
has  become  a  permanent  resident  of  the  United  States,  without 
actual  or  attempted  service  of  notice,  without  any  appearance 
in  his  behalf,  and  without  the  existence  of  any  facts  which  ac- 
cording to  the  laws  of  the  United  States  would  give  jurisdiction 
will  not  be  recognized  as  valid  in  the  United  States. ^° 


§  352.     Rights  under  foreign  alimony  decree. 

A  decree  for  alimony  entered  by  a  foreign  court  is  a  judgment 
of  that  court  and  may  be  sued  on  in  an  action  at  law^  in  other 
states,  like  other  judgments.^^     But   there  is  no  ground  in 

8  Burlen  v.  Shannon,  115  Mass.  438.  See  also  Thompson  v.  State,  28 
Ala.  12;  Harding  v.  Alden,  9  Me.  140,  23  Am.  Dec.  .549;  Holmes  v.  Holmes, 
57  Barb.  (X.  Y.)  305;  Hunt  v.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129;  Thoms 
V.  King,  95  Tenn.  60,  31  S.  W.  983;  Barber  v.  Barber,  21  How.  (U.  S.)  591. 
16  L.  ed.  226. 

9  Philadelphia  v.  Wetherby,  15  Phila.  (Pa.)  403.  See  also  Love  v.  Love, 
10  Phila.  (Pa.)  453;  Com.  v.  Steiger,  12  Pa.  Co.  Ct.  334;  Campbell  v.  Camp- 
bell, 90  Hun  (N.  Y.),  233,  35  N.  Y.  Supp.  280;  Doughty  v.  Doughty,  28 
X.  J.  Eq.  581;  McGiffert  v.  McGiffert,  31  Barb.  (X.  Y.)  69;  Phelps  v. 
Baker,  60  Barb.  (X.  Y.)  107;  O'Dea  v.  O'Dea,  101  X.  Y.  23,  4  X.  E.  110. 

10  St.  Sure  v.  Lindsfelt,  82  Wis.  346,  52  X.  W.  308,  33  Am.  St.  Rep.  50, 
19  L.  R.  A.  515  and  note. 

11  Dow  V.  Blake,  148  111.  76,  35  X.  E.  761,  39  Am.  St.  Rep.  1.56;  Bris- 
bane r.  Dobson,  50  Mo.  App.  170. 

[191] 


§  355.]  THE    LAW    OF    MARRIAGE    AND    DIVORCE.  [CHAP.  XXX. 

equity  for  specific  performance,  or  any  direct  method  of  enfor- 
cing the  decrees  of  a  foreign  court. ^^ 

§  353.     Marriage  under  foreign  divorce. 

Where  there  is  an  absokite  divorce,  the  prohibition  under 
penalty  of  the  remarriage  of  the  guilty  party  is  now  considered 
largely  to  be  of  local  application,  and  outside  the  jurischction 
of  that  state  of  no  effect.  If  there  is  an  absolute  divorce,  the 
guilty  party  may  remarry  in  any  other  jurisdiction  and  the 
marriage  will  be  held  valid,  even  though  the  purpose  is  the  evad- 
ing of  the  local  law."  But  the  divorce  must  be  a  valid  and 
absolute  decree  or  it  will  have  no  effect." 

§  354.     Foreign  decrees  as  to  property. 

As  a  rule,  it  is  considered  that  no  decree  of  a  foreign  court 
can  so  operate  or  be  enforced  in  the  state,  wherein  the  domicil 
of  the  other  party  is  situated,  as  to  make  any  change  of  prop- 
erty rights,  such  as  dower  or  distribution." 

§  355.     Prohibition  of  re-marriage. 

While  every  state  has  the  right  to  enact  laws  and  regulations 
governing  marriage  and  divorce  in  its  own  boundaries,  it  can- 
not enact  laws  which  extend  beyond  such  boundaries."  Nei- 
ther can  the  guilty  party  who  remarries  without  permission  of 
the  court  be  indicted  for  polygamy. ^^ 

12  Bullock  V.  Bullock,  51  N.  J.  Eq.  444,  27  Atl.  435;  Wood  v.  Wood,  7 
Misc.  (N.  Y.)  579,  28  N.  Y.  Supp.  154. 

13  Fuller  V.  Fuller,  40  Ala.  301;  Phillips  v.  Madrid,  83  Me.  205,  22  Atl.  114, 
23  Am.  St.  Rep.  770;  Clark  v.  Clark,  62  Mass.  385;  Thorp  v.  Thorp,  90 
N.  Y.  602,  43  Am.  Rep.  189. 

14  Barber  v.  Barber,  21  How.  (U.  S.)  582,  16  L'.  ed.  226. 

15  Dunham  v.  Dunham,  57  111.  App.  478;  Hilbish  v.  Hattle,  145  Ind.  59, 
44  N.  E.  20,  33  L.  R.  A.  783. 

18  West  Cambridge  v.  Lexington,  18  Mass.  506;  Van  Voorhis  v.  Brintnell, 
86  N.  Y.  18,  40  Am.  Rep.  505. 

"Com.  V.  Lane,  113  Mass.  458,  18  Am.  Rep.  509. 


[192] 


SYNOPSIS    OF   THE   MARRIAGE    STATUTES. 


SYNOPSIS    OF    THE    MARRIAGE    STATUTES   OF    THE    STATES    AND 

TERRITORIES. 

ALABAMA. 

Marriages  prohibited. 

The  son  must  not  marry  his  mother  or  stepmother,  or  the 
sister  of  his  father  or  mother,  or  the  widow  of  his  uncle.  The 
brother  must  not  marry  his  sister  or  half-sister,  or  the  daughter 
of  his  brother  or  half-brother,  or  of  his  sister  or  half-sister. 
The  father  must  not  marry  his  daughter  or  granddaughter, 
or  the  widow  of  his  son.  No  man  shall  marry  the  daughter 
of  his  wife  or  the  daughter  of  the  son  or  daughter  of  his  wife; 
and  all  such  marriages  are  hereby  declared  incestuous.^ 

The  provisions  of  the  preceding  section  apply  to  illegitimate 
as  well  as  to  legitimate  children  and  other  relations.^ 

Voidable  marriages, 

Incestuous  marriages.^  Divorce  is  provided  for  by  statute 
in  case  of  physical  incapacity  ^  and  pregnancy  before  mar- 
riage.^ 

Criminal  marriages. 

Marriage  of  a  female  compelled  by  menace,  fraud,  or  duress,^ 
bigamous  marriages,'  incestuous  marriages,*  marriages  between 
blacks  and  whites.® 

Age  limit:  Male  17  years.    Female  14  years.^" 

1  Civil  Code  (1896),  §  2837. 
2CivU  Code  (1896),  §2838. 
3  Crim.  Code  (1896),  §  4890. 
^Civ-il  Code  (1896),  §  1485. 

5  Civil  Code  (1896),  §  1486. 

6  Crim.  Code  (1896),  §4301. 
^Crim.  Code  (1896),  §  4406. 
»Crim.  Code  (1896),  §4889. 
"Crim.  Code  (1896),  §5096. 
10  Civil  Code  (1896),  §2839. 

13  [  193  ] 


THE    LAW    OF    MARRIAGE    AND    DIVORCE. 

ARIZONA. 

Marriages  prohibited. 

Between  lineal  cascendants  and  descendants,  brothers  and 
sisters,  of  the  one-half  as  well  as  of  the  whole  blood,  uncles 
and  nieces,  aunts  and  nephews,  first  cousins,  ^^  and  marriages 
between  whites  and  negroes,  Indians,  or  Mongohans.^^ 

Void  Marriages. 

Prohibited  marriages.^^ 

Voidable  marriages. 

Divorces  are  granted  for   physical   incapacity  at  time  of 

marriage.^"* 

Criminal  marriages. 

Bigamous  marriages,^^  marriages  within  prohibited  degrees,*^ 
and  marriage  of  female  entered  into  by  false  personation." 

Age  limit:  Male  18  years.     Female  16  years.^^ 

ARKANSAS. 
Marriages  prohibited. 

Between  Imeal  ascendants  and  descendants,  brothers  and 
sisters,  of  the  half  as  well  as  the  whole  blood,  uncles  and  nieces, 
aunts  and  nephews,  first  cousins  (these  provisions  extending 
to  illegitimate  relations), ^^  and  whites  and  negroes  or  mulattoes.^o 

Void  Marriages. 

Marriages  under  the  age  of  consent  j^^  incestuous  marriages; 22 
marriages  of  whites  with  negroes  or  mulattoes.^^ 

11  Rev.  Stats.  (1901),  §  3093. 

12  Rev.  Stats.  (1901),  §  3092. 

13  Rev.  Stats.  (1901),  §§3092,  3093. 

14  Session  Laws  (1903),  p.  52. 

15  Penal  Code  (1901),  §§  246,  248. 

16  Penal  Code  (1901),  §  250. 

17  Penal  Code  (1901),  §  477. 

18  Rev.  Stats.  (1901),  §  3088. 

19  Sand.  &  HiU  Dig.  (1894),  §  4908. 

20  Sand.  &  Hill  Dig.  (1894),  §  4909. 

21  Sand.  &  Hill  Dig.  (1894),  §  4907. 

22  Sand.  &  Hill  Dig.  (1894),  §  4908. 

23  Sand.  &  Hill  Dig.  (i894),  §  4909. 

[194] 


SYNOPSIS   OF   THE    MARRIAGE    STATUTES. 

Voidable  marriages. 

Where  marriage  was  obtained  by  fraud  or  force,  and  where 
either  party  was  under  the  age  of  consent,  physical  incapacity  or 
insanity  before  marriage.^^ 

Criminal  marriages. 

Bigamous  marriages, ^^  incestuous  marriages.^^ 
Age  limit:  Male  17  years.     Female  14  years." 

CALIFORNIA. 
Marriages  prohibited. 

Between  whites  and  negroes,  Mongolians  or  mulattoes,  parents 
and  children,  ancestors  and  descendants  of  every  degree, 
brothers  and  sisters  of  the  half  as  well  as  of  the  whole  blood, 
imcles  and  aunts  with  nieces  and  nephews,  whether  legitimate 
or  not.^* 

Void  m.arriages. 

Marriages  of  white  persons  with  negroes,  Mongohans  or 
mulattoes;  ^^  incestuous  marriages.^'* 

Voidable  marriages. 

Where  marriage  was  obtained  by  fraud  or  force,  where 
either  party  was  mider  the  age  of  consent,  physical  inca- 
pacity or  insanity  before  marriage,  and  bigamous  marriages.^^ 

Criminal  marriages. 

Bigamous  marriages ;  ^-  incestuous  marriages ;  ^^  and  mar- 
riages under  false  impersonation.^"* 

Age  limit:  Male  18  years.     Female  15  years.^^ 

24  Sand.  &  HiU  Dig.,  (1894),  §  4910. 

25  Sand.  &  Hill  Dig.,  (1894),  §  1483. 

26  Sand.  &  Hill  Dig.,  (1894),  §§  1689,  1690. 

27  Sand.  &  Hill  Dig.,  (1894),  §  4907. 

28  Deering's  Codes  (Civil,  1903),  §  59;  (CivU,  1905),  §  60. 

29  Deering's  Codes  (Civil,  1905),  §  60. 

30  Deering's  Codes  (Civil,  1903),  §  59. 

31  Deering's  Codes  (Civil,  1903),    §  82. 

32  Deering's  Codes  (Penal,  1903),  §  §  281,  283. 

33  Deering's  Codes  (Penal,  1903),  §  285. 

34  Deering's  Codes  (Penal,  1903),  §  528. 

35  Deering's  Codes  (Civil,  1903),     §  56. 

[195] 


THE    LAW   OF   MARRIAGE    AND    DIVORCE. 

COLORADO. 

Marriages  prohibited. 

All  marriages  between  parents  and  children,  including  grand- 
parents and  grandchildren  of  every  degree,  between  brothers 
and  sisters  of  the  half  as  well  as  of  the  whole  blood,  uncles  and 
aunts  with  nieces  and  nephews,  and  between  cousins  in  the  first 
degree,  whether  legitimate  or  not;  between  whites  and  negroes 
or  mulattoes;  ^^  and  marriages  within  one  year  after  divorce. ^^ 

Void  marriages. 

Incestuous  marriages,  marriages  of  white  persons  with  ne- 
groes or  mulattoes.^* 

Voidable  marriages. 
Where  either  party  was  insane  at  time  of  marriage.'^ 
Where  either  party  is  under  physical  incapacity,  and  in  case 

of  bigamous  marriages  divorces  are  granted.'*'* 

Criminal  marriages. 

Bigamous  marriages,'*^  and  incestuous  marriages.^^ 
Age  limit:   Male  21   years.     Female  18  years.     The  solem- 
nizing of  a  marriage  of  a  person  under  these  ages  is  criminal, 
unless  with  the  consent  of  parents,  if  any  in  the  state. '^^ 

CONNECTICTJT. 
Marriages  prohibited. 

No  man  shall  marry  his  mother,  grandmother,  daughter, 
granddaughter,  sister,  aunt,  niece,  stepmother,  or  stepdaughter; 
no  woman  shall  marry  her  father,  grandfather,  son,  grandson, 
brother,  uncle,  nephew,  stepfather,  or  stepson.^"* 

38  Mills's  Anno.  Stats.  (1891),  §§  1320,  2989. 

37  Mills's  Anno.  Stats.,  Supp.  (1905),  §  1567a. 

38  Mills's  Anno.  Stats.  (1891),  §§  1320,  2989. 

39  Mills's  Anno.  Stats.  (1891),  §2988. 

40  Mills's  Anno.  Stats.,  Supp.  (1905),  §  1562. 
"Mills's  Anno.  Stats.  (1891),  §  1317. 

«  Mills's  Anno.  Stats.,  Supp.  (1905),  §  1321. 

43  Mills's  Anno.  Stats.  (1891),  §2998. 

44  Gen.  Stats.   (1902),   §4534. 

[196] 


SYNOPSIS   OF  THE   MARRIAGE   STATUTES. 

Void  marriages. 

Incestuous  marriages;  ^^  marriages  by  unauthorized  per- 
sons.'*^ 

Voidable  marriages. 

Where  the  marriage  is  a  fraudulent  "contract." 

Criminal  marriages. 

Marriages  of  epileptics  and  imbeciles  when  woman  is  under 
forty-five;  '*^    proliibited  marriages;  ^*  bigamous  marriages.^^ 

Age  hmit:  Male  21  years.  Female  21  years.  No  hcense 
shall  be  issued  if  either  party  is  a  "minor"  imtil  a  parent  or 
person  in  control  has  assented.^^ 

DELAWARE. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  their  vnves  or  hus- 
bands, step  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews, ^^  whites  \\ith  negroes  or 
mulattoes,^^  paupers. 


54 


Void  m.arriages. 

Incestuous  marriages;  ^^  marriages  between  a  white  and  a 
negro  or  mulatto;  ^^  a  marriage  solemnized  by  an  unauthorized 
person  unless  consummated  with  full  belief  by  either  of  the 
parties  in  its  validity.^' 

45  Gen.  Stats.  (1902),  §4534. 

46  Gen.  Stats.  (1902),  §4538. 

47  Gen.  Stats.  (1902),  §  4535.     See  Benton  v.  Benton,  1  Day,  114. 

48  Gen.  Stats.   (1902),  §  1354. 

49  Gen.  Stats.  (1902),  §  1313. 

50  Gen.  Stats.   (1902),  §  1308. 

51  Gen.  Stats.  (1902),  §4535. 

52  Laws  of  1897,  pp.  692,  693. 

53  Rev.  Code  (1893),  p.  593. 

54  Subject  to  withdrawal  of  public  aid.     Rev.  Code  (1893),  p.  374. 

55  Laws  of  1897,  p.  692. 

56  Rev.  Code  (1893),  p.  593. 

57  Rev.  Code  (1893),  p.  594. 

[197] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

Voidable  marriages. 

Bigamous  marriages;  incestuous  marriages;  marriages  be- 
tween whites  and  blacks  or  mulattoes;  cases  of  insanity  at  time 
of  marriage.^* 

Criminal  m.arriages. 

Bigamous  marriages ;  ^^  incestuous  marriages  and  marriages 
of  a  white  with  a  negro  or  mulatto.^'* 

Age  hmit:  Male  18  years,  female  16  years,  unless  with  con- 
sent of  parent  or  guardian.^^ 

DISTRICT  OF  COLUMBIA. 

Marriages  prohibited. 

Between  ascendants  and  descendants  by  consanguinity  and 
affinity,  brothers  and  sisters,  stepparents  and  stepchildren, 
bigamous  marriages.^^ 

Void  marriages. 
Incestuous  and  bigamous  marriages.^* 

Voidable  marriages. 

Marriages  where  consent  has  been  obtained  by  force  or  fraud; 
where  a  party  is  physically  incapable;  marriage  of  an  idiot  or 
lunatic;  marriages  under  age  of  consent.^^ 

Criminal  marriages. 

Bigamous  marriages;  ^^  incestuous  marriages.^® 

Age  limit:  Male  21  years.    Female  18  years.^^    Under  these 

58  Rev.  Code  (1893),  p.  596. 

59  Rev.  Code  (1893),  p.  953. 

60  Rev.  Code  (1893),  p.  593. 

61  Rev.  Code  (1893),  p.  594. 

62  Code   (1906),    §  1283. 

63  Code   (1906),    §1283. 

64  Code   (1906),    §  1285. 

65  Code  (1906),  §870. 

66  Code  (1906),  §  875. 

[198] 


71 


SYNOPSIS   OF   THE    MARRIAGE   STATUTES. 

ages  licenses  to  marry  are  not  to  be  issued  -without  the  consent 
of  a  parent  or  guardian.^* 

FLORIDA. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews.^^ 

Void  marriages. 
Marriages  of  whites  with  negroes; '°  former  spouse  living 

Voidable  marriages. 

Divorces  are  granted  in  cases  of  marriages  within  the  pro- 
liibited  degrees;  cases  of  impotency  and  of  permanent  msan- 
ity.'^ 

Criminal  m.arriages. 

Bigamous  marriages;  ^^  incestuous  marriages;  ^^  marriages 
between  whites  and  negroes. ^^ 

Age  Umit:  Male  21  years.  Female  21  years.  These  are 
the  ages  below  which  the  consent  of  the  parent  or  person  in 
control  is  required.'^ 

GEORGIA. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews;  ^^  of  a  man  with  his  step- 
mother,    mother-in-law,     daughter-in-law,    stepdaughter,    or 

67  Code  (1906),  §  1285. 

68  Code    (1906),    §  1292. 
8«Rev.  Stats.   (1892),  §2602. 

70  Rev.  Stats.  (1892),  §2063. 

71  Rev.  Stats.  (1892),  §  1481. 

72  Rev.  Stats.  (1892),  §  1480;  Laws  of  1901,  p.  118. 

73  Rev.  Stats.  (1892),  §2603. 

74  Rev.  Stats.  (1892),  §2601. 

75  Laws  of  1903,  p.  76. 

76  Rev.  Stats.  (1892),  §2055. 

77  3  Code  (1895),  §380. 

[199] 


THE    LAW   OF   MARRIAGE    AND    DIVORCE. 

granddaughter  of  his  wife  and  of  a  woman  with  her  correspond- 
ing relatives;  ^^  marriages  between  whites  and  blacks/^ 

Void  marriages. 

Bigamous  marriages;  ^°  incestuous  marriages;  *^  marriages  of 
whites  with  blacks.*^ 

Voidable  marriages. 

Fraudulent  marriages,  marriages  under  age  limit,  and  physi- 
cal or  mental  disabiUty  at  time  of  marriage. ^^ 

Criminal  m.arriages. 

Bigamous  marriages;  ^^  incestuous  marriages.*^ 
Age  hmit:  Male  17  years.     Female  14  years.*^ 

HAWAII. 

Marriages  prohibited. 

Marriages  within  the  fourth  degree  of  consanguinity.*^ 

Voidable  m.arriages. 

Proliibited  marriages;  physical  or  mental  disability  at  time 
of  marriage;  marriages  under  age  of  consent;  bigamous  mar- 
riages.^* 

Criminal  marriages. 

Marriages  involving  bigamy/^  incest  ^^  or  abduction.^* 
Age  Umit:  Male  17  years.     Female  14  years. ^^ 

78  2  Code  (1895),  §2413. 

79  2  Code  (1895),  §  2422. 

80  3  Code  (1895),  §377. 

81  3  Code  (1895),  §  380. 

82  2  Code  (1895),  §  2422. 

83  2  Code  (1895),  §§  2410,  2411,  2412.     Park  v.  Barron,  20  Ga.  702. 

84  3  Code  (1895),  §  377. 

85  3  Code  (1895),  §380. 

86  2  Code  (1895),  §2412. 

87  Rev.  Laws  (1905),  §    2207. 

88  Rev.  Laws  (1905),  §  2218. 

89  Rev.  Laws  (1905),  §  3155. 

90  Rev.  Laws  (1905),  §  3156. 

91  Rev.  Laws  (1905),  §  2930. 

92  Rev.  Laws  (1905),  §  2207. 

[200] 


SYNOPSIS    OF   THE   IMARRIAGE   STATUTES. 

IDAHO. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters 
of  the  half  as  well  as  the  whole  blood,  uncles  and  nieces,  aunts 
and  nephews.^^ 

Void  marriages. 

Bigamous  marriages;  ^'*  incestuous  marriages;  ^^  marriages 
of  whites  with  negroes  or  mulattoes.^^ 

Voidable  marriages. 

Marriages  procured  by  fraud  or  force ;  marriages  where  either 
party  was  under  the  age  Umit,  or  physical  disabihty  or  insanity 
at  time  of  marriage,  or  had  a  former  marriage  in  force.^^ 

Criminal  marriages. 

Marriages  entered  into  by  falsely  impersonating  another;  ^* 
prohibited  marriages;  ^^  bigamous  marriages.^'^'* 

Age  limit:  Male  18  years.     Female  18  years.^"^ 

ILLINOIS. 

Marriages  prohibited. 

Between  Uneal  ascendants  and  descendants,  brothers  and  sis- 
ters of  the  half  as  well  as  the  whole  blood,  uncles  and  nieces, 
aunts  and  nephews,  and  first  cousins.  This  section  appUes  to 
illegitimate  as  well  as  legitimate  relations. ^"^^ 

Void  marriages. 

Incestuous  marriages. ^°^ 

83  Civil  Code   (1901),   §  1993. 

84  Session  Laws  of  1903,  p.  10. 

85  Civil  Code  (1901),  §  1993. 

86  Civil  Code  (1901),  §  1994. 
97  Civil  Code  (1901),  §2014. 

88  Penal  Code  (1901),  §  4725. 

89  Penal  Code  (1901),  §4701. 

100  Session  Laws  of  1905,  p.  293. 

101  Civil  Code  (1901),  §  1990. 

102  Kurd's  Rev.  Stats.  (1903),  c.  89,  §  1. 

103  Kurd's  Rev.  Stats.  (1903),  c.  89,  §  1. 

[201] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE, 
Voidable  marriages. 

Insanity  or  idiocy  at  time  of  marriage.^"'* 

Criminal  marriages. 

Bigamous  marriages;  ^"^  incestuous  marriages."® 
Age  limit:  Male  18  years.     Female  16  years 


107 


INDIAN  TERRITORY. 

Prohibited  marriages. 

Between  parents  and  children,  including  grandparents  and 
grandchildren  of  every  degree;  brothers  and  sisters  of  the  half 
as  well  as  the  whole  blood;  uncles  and  nieces;  aunts  and 
nephews  and  first  cousins.  The  prohibition  extends  to  ille- 
gitimate children  and  relations;"^  marriages  where  either  party 
has  former  spouse  living. 


109 


Void  marriages. 

Incestuous  marriages;  ^"  marriages  between  whites  and  ne- 
groes or  mulattoes;^^^  under  the  age  of  consent.^^^ 

Voidable  marriages. 

Where  either  party  is  under  the  age  of  consent,  mentally  or 
physically  incapable  or  has  consented  on  account  of  force  or 
fraud.  ^^^ 

Criminal  marriages. 

Bigamous  marriages,  except  when  former  spouse  has  been 

104  Kurd's  Rev.  Stats.  (1903),  c.  89,  §  2. 

105  Kurd's  Rev.  Stats.  (1903),  c.  38,  §  28. 

106  Kurd's  Rev.  Stats.  (1903),  c.  38,  §§  156,  157. 

107  Laws  of  1905,  p.  317. 

108  Statutes  (1899),  §  2992. 

109  Statutes  (1899),  §  2995. 

110  Statutes  (1899),  §2992. 

111  Statutes  (1899),  §  2993. 

112  Statutes  (1899),  §2991. 

113  Statutes  (1899),  §  2994. 

[  202  ] 


SYNOPSIS   OF   THE    MARRIAGE   STATUTES. 

absent  five  years  and  is  not  known  to  be  li^-ing;  ^^'^  incestuous 
marriages. ^^^ 

Age  limit:  Male  17  years.    Female  14  years.^^^ 


INDIANA. 
Marriages  prohibited. 

Between  those  nearer  of  kin  than  second  cousins,"^  and 
marriages  between  whites  and  persons  of  one-eighth  negro 
blood."* 

Void  marriages. 

Incestuous  marriages;  "^  marriages  out  of  state  to  evade 
provisions  of  statute;  ^^^  former  husband  or  wife  living;  be- 
tween whites  and  blacks  of  one-eighth  negro  blood;  one  party 
insane  or  idiotic. ^-^ 

Voidable  marriages. 

Mental  disability  of  either  party  at  time  ^of  marriage,  or 
either  party  below  age  Umit.^^ 


122 


Criminal  marriages. 

Bigamous  marriages;  ^^^  incestuous  marriages;^-'*  marriages 
between  whites  and  persons  of  one-eighth  negro  blood.^^^ 

Age  limit:  Male  18  years.    Female  16  years.^^^ 

"*  Statutes  (1899),  §§  923,  924. 

115  Statutes  (1899),  §§921,  922. 

116  Statutes  (1899),  §  2991. 

117  Burns'  Anno.  Stats.  (1901),  §  7289. 

118  Burns'  Anno.  Stats.  (1901),  §  2257. 

119  Bums'  Anno.  Stats.  (1901),  §  1036. 

120  Acts  of  190.5,  c.  126,  pp.  215,  216. 

121  Burns'  Anno.  Stats.  (1901),  §§  1036,  7290. 

122  Burns'  Anno.  Stats.  (1901),  §  1037. 

123  Acts  of  1905,  p.  689. 

124  Acts  of  1905,  p.  689. 

125  Bums'  Anno.  Stats.  (1901),  §  2257. 

126  Burns'  Anno.  Stats.  (1901),  §  7289. 

[  203  ] 


THE    LAW    OF   MARRIAGE   AND    DIVORCE. 

IOWA. 

Marriages  prohibited. 

Between  lineal  ascendants  and  descendants,  brothers  and 
sisters,  uncles  and  nieces,  aunts  and  nephews,  stepparents  and 
stepchildren,  parents-in-law  and  children-in-law.^^^ 

Void  marriages. 

Prohibited  marriages;  bigamous  marriages. ^^* 

Voidable  marriages. 

Bigamous  marriages,  incestuous  marriages,  and  where  there 
was  physical  or  mental  incapacity  of  either  party  at  time  of 
marriage.  ^^* 

Crixainal  m.arriages. 

Bigamous  marriages;  "°  prohibited  marriages. ^^^ 
Age  limit:  Male  16  years.     Female  14  years.^^^ 

KANSAS. 
Marriages  prohibited. 

Between  Uneal  ascendants  and  descendants,  brothers  and 
sisters  of  the  half  as  well  as  the  whole  blood,  uncles  and  nieces, 
aunts  and  nephews,  and  first  cousins,  all  these  relatives  ille- 
gitimate as  well  as  legitimate ;  ^^^  marriage  of  an  epileptic, 
imbecile,  feeble-minded  or  insane  person  except  the  woman  be 
over  forty-five. ^^^ 

Void  marriages. 

Incestuous  marriages.^'^ 

127  Code  (1897),  §4936. 

128  Code  (1897),  §3151. 

129  Code  (1897),  §  3182. 

130  Code  (1897),  §3151. 

131  Code  (1897),  §  4936. 

132  Code  (1897),  §  3140. 

133  Dassler's  Gen.  Stats.  (1901),  §  4007. 

134  Laws  of  1903,  p.  373. 

135  Dassler's  Gen.  Stats.  (1901),  §  4007. 

[204] 


SYNOPSIS   OF  THE   MARRIAGE   STATUTES. 

Voidable  marriages. 

Divorce  is  provided  in  case  of  physical  disability  at  time  of 
marriage,  marriages  entered  into  fraudulently,  and  pre-nuptial 
pregnancy  without  husband's  knowledge. ^^^ 

Marriages  are  to  be  declared  void  when  either  of  the  parties 
was  incapable  from  want  of  age  or  understanding.  ^^^ 

Criminal  marriages. 

Marriage  of  a  female  compelled  by  force/^^  and  prohibited 
marriages.  ^^^ 

Age  limit:  Male  17  years.  Female  15  years.""  Under 
these  ages  the  license  requires  the  assent  of  probate  judge. 

KENTUCKY. 
Marriages  prohibited. 

Between  ascendants  and  descendants,  their  wives  or  hus- 
bands, step  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces  or  grand  nieces,  aunts  and  nephews  or  grand 
nephews,"^  marriages  of  whites  with  negroes  or  mulattoes, 
marriage  of  an  idiot,  insane  person,  or  person  under  age,  and 
bigamous  marriages,"^  marriages  by  unauthorized  person. 

Void  marriage. 

Prohibited  marriages;  "^  except  in  the  case  of  a  marriage  by 
an  unauthorized  person  where  one  party  believed  it  vaUd."^ 

Voidable  m.arriages. 

Marriages  under  the  age  of  consent  if  not  ratified  after  that 
age,   and  marriages  contracted  by  force  or  fraud. "^ 

136  Dassler's  Gen.  Stats.  (1901),  §  5132. 

137  Dassler's  Gen.  Stats.  (1901),  §  5143. 

138  Dassler's  Gen.  Stats.  (1901),  §  2018. 

139  Dassler's  Gen.  Stats.  (1901),  §§  2219,  4008,  Laws  of  1903,  p.  374. 
"c  Laws  of  1905,  p.  462. 

1"  Carroll's  Statutes  (1903),  §  2096. 

"2  Carroll's  Statutes  (1903),  §  2097. 

i«  Carroll's  Statutes  (1903),  §§  2096,  2097. 

1"  CarroU's  Statutes  (1903),  §§  2097,  2102. 

i«  Carroll's  Statutes  (1903),  §  2100. 

[205] 


THE    LAW   OF    MARRIAGE   AND    DIVORCE. 

Criminal  marriages. 

Marriages  between  whites  or  negroes  and  mulattoes;  inces- 
tuous marriages;  ^^^  bigamous  marriages. ^^'' 

Age  limit:  Male  14  years.     Female  12  years.^^* 

LOUISIANA. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters 
of  the  half  as  well  as  the  whole  blood,  uncles  and  nieces,  aunts 
and  nephews,  all  this  applying  to  illegitimate  as  well  as  to 
legitimate  relatives;  marriages  between  white  persons  and 
persons  of  color. ^^^ 

Void  m.arriage. 

Marriages  between  ascendants  and  descendants;  marriages 
between  white  persons  and  persons  of  color. ^^"^ 

Voidable  marriages. 

Marriages  below  age  limit;  marriages  by  fraud  or  force,  and 
want  of  free  consent;  bigamous  marriages;  incestuous  mar- 
riages.^^^ 

Criminal  marriages. 

Bigamous  and  incestuous  marriages.  ^^^ 

Age  limit:  Male  14  years.    Female  12  years.^^^ 

MAINE. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  their  wives  or  hus- 
bands, step  ascendants  and  descendants,  brothers  and  sisters, 

"sCarroU's  Statutes  (1903),  §§  2114,  1219. 

147  Carroll's  Statutes  (1903),  §  1216. 

148  Carroll's  Statutes  (1903),  §  2097. 

i«  Revised  Civil  Code  (1900),  Arts.  94,  95. 

150  Revised  Civil  Code  (1900),  Arts.  94. 

151  Revised  Civil  Code  (1900),  Arts.  110-118. 

152  Revised  Laws  (1904),  pp.  321,  329. 

153  Revised  Civil  Code  (1900),  Art.  92. 

[206] 


SYNOPSIS   OF   THE    MARRIAGE   STATUTES. 

uncles  and  nieces,  aunts  and  nephews,  with  ascendants  and 
descendants  of  spouse. ^^^  Licenses  are  forbidden  to  be  issued 
to  a  town  pauper. ^^^ 

Void  marriages. 

Incestuous  marriages,  marriage  of  an  insane  person  or  idiot, 
and  bigamous  marriages.^^^ 

Voidable  marriages. 

Incestuous  marriages,  bigamous  marriages,  marriages  below 
age  limit,  and  where  one  party  was  an  idiot  or  insane. ^^^ 

Criminal  marriages. 
Incestuous  prohibited  marriages,  and  bigamous  marriages.^^^ 
Age  limit:  Male  21  years.     Female  18  years.     Under  these 

ages  certificates  are  forbidden  to  be  issued  without  the  consent 

of  parent  or  guardian.^^^ 


MARYLAND. 
Marriages  prohibited. 

Between  ascendants  and  descendants,  and  with  ascendants 
or  descendants  by  affinity,  brothers  and  sisters,  uncles  and 
nieces,  aunts  and  nephews,  ^^'^  and  marriages  between  whites 
and  blacks. ^^^ 

Void  marriages. 

Incestuous  marriages;  ^^'  marriages  between  whites  and 
blacks.  ^^^ 

154  Revised  Stats.  (1903),  p.  573,  §  1. 

155  Revised  Stats.  (1903),  p.  573,  §  5. 

156  Revised  Stats.  (1903),  p.  573,  §§  1,  2,  3,  p.  581,  §  1. 

157  Revised  Stats.  (1903),  p.  583.  §§  15-17. 

158  Revised  Stats.  (1903),  p.  581    §  1,  p.  930,  §§  2,  4. 

159  Revised  Stats.  (1903),  p.  573,  §  5. 

160  Pub.  Gen.  Laws  (1904),  pp.  1495,  1496. 

161  Pub.  Gen.  Laws  (1904),  p.  878. 

162  Pub.  Gen.  Laws  (1904),  pp.  1495,  1496. 

163  Pub.  Gen.  Laws  (1904),  p.  878. 

[207] 


THE    LAW   OF    MARRIAGE   AND    DIVORCE. 

Voidable  marriages. 

Marriages  within   the    prohibited   degrees;   bigamous  mar- 
riages, impotence  of  either  party.^^^ 

Criminal  marriages. 

Bigamous  marriages  ^^^  and  prohibited  marriages.^^^ 
Age  limit:   Male  21  years.     Female  16  years.     Under  these 
ages  certificate  cannot  issue  without  consent  of  parent  or  guard- 
ian. 


167 


MASSACHUSETTS. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  with  ascendants  or 
descendants  by  affinity,  between  brothers  and  sisters,  uncles 
and  nieces,  aunts  and  nephews. ^^* 

Void  marriages. 

Bigamous  marriages;  incestuous  marriages  ;^^^  marriages  out 
of  state  to  evade  law;  ^'^°  marriages  under  age  of  consent  if  par- 
ties separate  under  that  age.^'^^ 

Voidable  marriages. 

Marriages  of  lunatics  or  idiots.^^^ 

Criminal  marriages. 

Bigamous  marriages,  marriage  of  a  person  against  whom  a 
divorce  was  granted  within  two  years, ^^^  and  marriages  pro- 
hibited because  of  relationship. ^^^ 

164  Pub.  Gen.  Laws  (1904),  p.  386,  §  36. 

165  Pub.  Gen.  Laws  (1904),  p.  781,  §  19. 

166  Pub.  Gen.  Laws  (1904),  p.  865,  §  258,  p.  878,  §  305. 

167  Pub.  Gen.  Laws  (1904),  pp.  1498,  1499. 

168  Rev.  Laws  (1902),  p.  1345,  §§1,2. 

169  Rev.  Laws  (1902),  pp.  1345,  1346,  §§  4,  8. 

170  Rev.  Laws  (1902),  p.  1346,  §  10. 

171  Rev.  Laws  (1902),  p.  1346,  §  9. 

172  Rev.  Laws  (1902),  p.  1346,  §  5. 

173  Rev.  Laws  (1902),  p.  1787,  §  11. 

174  Rev.  Laws  (1902),  p.  1787,  §  13. 

[208] 


SYNOPSIS    OF    THE    MARRIAGE    STATUTES. 


75 


Age  limit:  of  consent:  Male  14  years.     Female  12  years.^ 
Under  which  consent  of    parent  or  guardian  is  required: 
Male  21  years-.     Female  18  years.^^^ 

MICHIGAN. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  with  ascendants  and 
descendants  by  affinity,  between  brothers  and  sisters,  uncles 
and  nieces,  aunts  and  nephews,  and  cousins  of  the  first  degree;  ^ 
bigamous  marriages.^ 

Void  marriages. 

Incestuous  marriages;  bigamous  marriages;  ^  marriages  of 
an  msane  person  or  idiot  ;  marriages  under  the  age  of  consent 
if  parties  separate  during  nonage;  marriages  procured  by  force 
or  fraud.^ 

Voidable  marriages. 

Marriages  induced  by  fraud;  marriages  below  age  Hmit,^ 
marriage  of  a  person  afflicted  with  insanity,  idiocy,  epilepsy  or 
venereal  disease^  at  time  of  marriage;  prohibited  marriages; 
void  marriages.^ 

Criminal  marriages. 

Marriages  performed  after  decree  of  divorce  within  a  certain 
time  fixed  by  the  court,  not  exceeding  two  years  ;^  marriage  by 
a  person  who  has  had  a  venereal  disease  and  has  not  been 

175  Parton  v.  Hervey,  1  Gray,  119. 

176  Rev.  Laws  (1902),  p.  1346,  §  7. 

1  Public  Acts  of  1903,  p.  424. 

2  Compiled  Laws  (1897),  §  8592. 

3  CompUed  Laws  (1897),  §  8616. 
^Compiled  Laws  (1897),  §  8617. 

5 Compiled  Laws  (1897),  §§  8618,  8619. 
« Public  Acts  of  1905,  pp.  185,  186. 
7  Compiled  Laws  (1897),  §  8658. 

14  [209] 


THE    LAW   OF   MARRIAGE    AND   DIVORCE. 

cured,  or  with  a  person  who  has  been  confined  as  an  epileptic, 
feeble-minded,  imbecile  or  insane  patient.^ 
Age  limit:  Male  18  years.     Female  16  years.^ 

MINNESOTA. 
Marriages  prohibited. 

Between  persons  nearer  of  kin  than  first  cousins,  bigamous 
marriages,  ^°  and  marriage  of  a  woman  under  forty-five  years  of 
age  or  of  a  man  of  any  age,  except  to  a  woman  over  forty-five, 
who  is  epileptic,  imbecile,  feeble-minded,  or  insane." 

Void  marriages. 

Marriages  within  the  prohibited  degrees;  bigamous  mar- 
riages.^2 

Voidable  marriages. 

Marriages  induced  by  force  or  fraud  where  the  parties  do  not 
live  together  afterward,  want  of  understanding,  and  marriages 
below  age  limit.  ^^ 

Criminal  xaarriages. 

Marriages  performed  within  six  months  after  a  divorce;  ^"^ 
marriage  of  a  female  compelled  by  force,  menace  or  duress;  ^^ 
incestuous  marriages;  ^^  bigamous  marriages;  ^^  marriage  of  an 
epileptic,  etc.^* 

Age  limit:  Male  18  years.     Female  15  years. ^^ 

8  Public  Acts  of  1905,  pp.  185,  186. 

9  Compiled  Laws  (1897),  §  8588. 

10  Gen.  Stats.  (1894),  §  4770. 

11  Gen.  Laws  of  1901,  p.  344. 

12  Gen.  Stats.  (1894),  §  4785. 

13  Gen.  Stats.  (1894),  §  4786. 
1*  Gen.  Laws  of  1901,  p.  285. 

15  Gen.  Stats.  (1894),  §  6528. 

16  Gen.  Stats.  (1894),  §  6553. 

17  Gen.  Stats.  (1894),  §  6550. 

18  Gen.  Laws  of  1901,  p.  344. 

19  Gen.  Stats.  (1894),  §4769. 

[210] 


SYNOPSIS    OF   THE   M.\RRIAGE    STATUTES. 

MISSISSIPPI. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews;  marriages  with  ascend- 
ants or  descendants  by  affinity;  marriages  of  whites  with  ne- 
groes or  Mongolians  of  one-eighth  blood. ^° 

Void  marriages. 

Incestuous  marriages;  marriages  of  whites  vnth  negroes  or 
MongoUans.^^ 

Voidable  marriages. 

Divorces  are  granted  for  causes  which  are  usual  grounds  for 
avoiding  marriages. ^^ 

Criminal  marriages. 

Bigamous  marriages;  ^^  incestuous  marriages.^'* 

Age  Umit :  Male  21  years.     Female  18  years.     These  are  the 

ages  under  which  a  Ucense  is  forbidden  without  the  consent  of 

parent  or  guardian.^^ 

MISSOURI. 

Marriages  prohibited. 

Between  Uneal  ascendants  and  descendants,  brothers  and 
sisters,  uncles  and  nieces,  aunts  and  nephews,  first  cousins, 
white  persons  and  negroes.^^ 

Void  m.arriages. 

Incestuous  marriages;  marriages  of  white  persons  with  ne- 
groes; 2'  bigamous  marriages,^* 

20 Code  (1892),  §§  2857-2859. 

21  Code  (1892),  §§  2857,  2859. 

22  Code  (1892),  §  1562. 

23  Code  (1892),  §  975. 

24  Code  (1892),  §  1168. 

25  Code  (1892),  §  2860. 

26  Rev.  Stats.  (1899),  §  4312. 

27  Rev.  Stats.  (1899),  §  4312. 

28  Rev.  Stats.  (1899),  §  4313. 

[211] 


THE    LAW   OF   MARRIAGE   AND    DIVORCE. 

Voidable  marriages. 

Marriages  under  age  of  consent,  or  other  incapability  to  con- 
tract.^^ 

Criminal  m.arriages. 

Prohibited  marriages;  ^^  bigamous  marriages.'^ 

Age  limit:  Male  21  years.     Female  18  years.     These  are  ages 

under  which  consent  of  parent  or  guardian  is  required.^^ 

MONTANA. 
Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters 
of  the  half  as  well  as  the  whole  blood,  uncles  and  nieces,  aunts 
and  nephews,^^  and  bigamous  marriages. 

Void  marriages. 

Incestuous  marriages;  bigamous  marriages.^^ 

Voidable  m.arriages. 

Marriages  under  the  age  of  consent;  bigamous  marriages; 
marriages  induced  by  force  or  fraud,  and  marriages  where  one 
party  was  of  unsound  mind  or  under  physical  disabiUty  at 
time  of  marriage;  ^^  incestuous  marriages.^^ 

Criminal  marriages. 

Marriage  of  female  by  fraud,  innocent  party  marrying  within 
two  years  after  divorce,  guilty  party  witliin  three  years  after 
divorce,  and  prohibited  marriages.^'' 

Age  Hmit:  Male  18  years.     Female  16  years.^^ 


29  Rev.  Stats.  (1899),  §  4311. 

30  Rev.  Stats.  (1899),  §§  2172,  2174 

31  Rev.  Stats.  (1899),  §  2171. 

32  Rev.  Stats.  (1899),  §  4321. 

33  Civil  Code  (1895),  §  54. 

34  Civil  Code  (1895),  §§  54,  55. 

35  Civil  Code  (1895),  §  110. 

36  Civil  Code  (1895),  §  100. 

37  Penal  Code  (1895),  §§  930,  495,  492,  494. 

38  Civil  Code  (1895),  §  51. 

[212] 


SYNOPSIS   OF  THE    MARRIAGE   STATUTES. 

NEBRASKA. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters 
of  the  half  as  well  as  the  whole  blood,  uncles  and  nieces,  aunts 
and  nephews,  first  cousins  of  the  whole  blood. ^* 

Void  marriages. 

Marriage  of  wliite  persons  with  persons  of  one-fourth  or  more 
negro  blood;  bigamous  marriages;  insanity  or  idiocy  at  time 
of  marriage;   incestuous  marriages.^" 

Voidable  marriages. 

Marriages  under  the  age  of  consent  vnih  separation  during 
nonage;  marriages  procured  by  force  or  fraud  without  subse- 
quent voluntary  cohabitation.^^  Void  marriages  may  be  de- 
creed such.'*2 

Criminal  marriages. 

Bigamous  marriages;  '*^  incestuous  marriages.'*^ 
Age  Umit:  Male  18  years.     Female  16  years.'*^ 

NEVADA. 
Marriages  prohibited. 

Between  persons  nearer  of  kin  than  second  cousins  or  first 
cousins  of  the  half  blood. '*^ 

Void  marriages. 

Incestuous  marriages;  bigamous  marriages,^^ 

Voidable  marriages. 

Marriages  entered  into  by  fraud;  marriages  below  the  age 

39  Comp.  Stats.  (1905),  §  4275. 
40Comp.  Stats.  (1905),  §  4275. 

41  Comp.  Stats.  (1905),  §  3166. 

42  Comp.  Stats.  (1905),  §  3167. 

43  Comp.  Stats.  (1905),  §  7865. 

44  Comp.  Stats.  (1905),  §§  7642,  7866-7868. 

45  Comp.  Stats.  (1905),  §  4274. 

46  Comp.  Laws  (1900),  §  483. 

47  Comp.  Laws  (1900),  §  498. 

[  218  ] 


THE    LAW   OF    MARRIAGE   AND    DIVORCE. 

limit;  marriages  with  want  of  understanding — ^when  there  has 
been  no  subsequent  cohabitation.^* 

Criminal  marriages. 

Incestuous^^  or  bigamous^*'  marriages,  or  between  white  per- 
sons and  negroes,  MongoUans  or  Indians.^^ 

Age  limit:  Male  18  years.     Female  16  years.^^ 


NEW  HAMPSHIRE. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  their  wives  or  hus- 
bands, step  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews,  and  first  cousins.^^ 

Void  m.arriages. 

Incestuous  marriages;  ^^  bigamous  marriages.^^ 

Voidable  m.arriages. 

Marriages  may  be  decreed  to  have  been  null  and  void  upon 
proceedings  to  test  their  validity.^^ 

Crim.inal  marriages. 

Bigamous  marriages;  ^^  incestuous  marriages.^* 
Age  Umit:  Male  14  years.    Female  13  years.^^ 

48Comp.  Laws  (1900),  §§  499,  500. 
49Comp.  Laws  (1900),  §  4766. 
50Comp.  Laws  (1900),  §  4764. 
siComp.  Laws  (1900),  §  4851. 
82Comp.  Laws  (1900),  §  483. 
88  Pub.  Stats.  (1901),  p.  588,  §§  1,  2. 

54  Pub.  Stats.  (1901),  p.  588,  §  3,  p.  590,  §  1. 

55  Pub.  Stats.  (1901),  p.  590,  §  1. 

56  Pub.  Stats.  (1901),  p.  590,  §  2. 

57  Pub.  Stats.  (1901),  p.  821,  §  5. 

58  Pub.  Stats.  (1901),  p.  822,  §  7. 

59  Pub.  Stats.  (1901),  p.  588,  §  4. 

[214] 


SYNOPSIS  OF  THE    MARRIAGE   STATUTES. 

NEW  JERSEY. 
Marriages  prohibited. 

Between  lineal  ascendants  and  descendants,  brothers  and 
sisters,  uncles  and  nieces,  and  aunts  and  nephews;  bigamous 
marriages;  ^°  marriages  of  persons  who  have  been  confined  as 
epileptic ;  insane  or  feeble-minded  patients  without  certificate 
of  recovery. ^^ 

Void  marriages. 
Bigamous  marriages;  incestuous  marriages.^^ 

Voidable  marriages. 

Marriages  witliin  the  prohibited  degrees;  bigamous  mar- 
riages.^^ 

Crim.inal  marriages. 

Marriages  within  the  prohibited  degrees  of  relationship;  ^"^ 
marriage  of  an  epileptic,  insane,  or  feeble-minded  patient  who 
has  not  recovered. ^^ 

Age  hmit:  Male  21  years.  Female  18  years.  These  are  the 
ages  below  which  the  consent  of  a  parent  or  guardian  is  re- 
quired.^^ 

NEW  MEXICO. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews. ^^ 

Void  marriages. 

Incestuous  marriages;  ^*  marriages  of  males  under  eighteen 
and  females  under  fifteen.^* 

60  Laws  of  1902,  p.  490. 

61  Laws  of  1904,  p.  270. 

62  Laws  of  1902,  p.  490. 
83  Laws  of  1902,  p.  502. 

64  Gen.  Stats.  (1895),  p.  1087,  §  213. 

65  Laws  of  1904,  p.  270. 

68  Laws  of  1902,  p.  491. 

67  Comp.  Laws  (1897),  §  1425. 
68Comp.  Laws  (1897),  §  1425. 

69  Comp.  Laws  (1897),  §  1426. 

[215] 


THE    LAW   OF    MARRIAGE    AND    DIVORCE, 

Voidable  marriages. 

Incestuous  marriages;  marriages  under  age  of  consent;  ^°  in- 
sanity at  time  of  marriage. 


71 


Criminal  marriages. 

Marriage  of  a  female  by  force,  menace,  or  duress;  ^^  prohibited 
marriages;  '^  bigamous  marriages.^'* 

Age  limit:  Male  18  years.     Female  15  years.'^ 

NEW  YORK. 

Marriages  prohibited. 

Between  lineal  ascendants  and  descendants,  brothers  and 
sisters,  uncles  and  nieces,  aunts  and  nephews, ^^  and  marriages 
of  persons  divorced  in  the  state  for  his  or  her  fault  during  the 
life  of  the  other,  or  until  consent  of  court  after  five  years.^^ 

Void  marriages. 

Bigamous  marriages;  incestuous  marriages.^* 

Voidable  marriages. 

Want  of  understanding,  marriages  induced  by  force,  duress, 
or  fraud ;  marriages  under  age  of  consent;  marriages  with  former 
husband  or  wife  living  for  five  years  without  knowledge  of 
spouse,  and  physical  incapacity  at  time  of  marriage.''^ 

Criminal  marriages. 

Marriages  within  prohibited  degrees  of  relationship,^"  biga- 

70Comp.  Laws  (1897),  §  1430. 
7iComp.  Laws  (1897),  §  1415. 
72Comp.  Laws  (1897),  §  1092. 
73Comp.  Laws  (1897),  §  1427. 
74Comp.  Laws  (1897),  §  1266. 
75Comp.  Laws  (1897),  §  1426. 
78  Birdseye's  State.  &  Codes  (1901),  p.  1041. 

77  Birdseye's  Stats.  &  Codes  (1901),  p.  998. 

78  Birdseye's  Stats.  &  Codes  (1901),  p.  1041. 

79  Birdseye's  Stats.  &  Codes  (1901),  pp.  1041,  1042. 

80  Birdseye's  Stats.  &  Codes  (1901),  p.  1689. 

[216] 


SYNOPSIS   OF  THE   MARRIAGE   STATUTES. 

mous  marriages, ^^  and  marriage  of  a  female  compelled  by  men- 
ace, force,  or  duress.*- 
Age  limit:  Male  18  years.     Female  18  years.** 


NORTH  CAROLINA. 

Marriages  prohibited. 

Between  persons  related  nearer  than  first  cousins,  marriages 
between  whites  and  negroes  or  Indians  or  of  negro  or  Indian 
descent  to  the  third  generation,  and  bigamous  marriages.*-* 

Void  marriages. 

Prohibited  marriages;  marriages  under  age;  bigamous  mar- 
riages; marriages  of  persons  impotent  physically  or  incapable 
from  want  of  will  or  understanding,*^ 

Voidable  marriages. 

All  void  marriages  may  be  declared  void  during  the  hfetime 
of  the  parties  upon  application.  Marriages  void  by  miscege- 
nation may  be  so  declared  at  any  time.*® 

Criminal  marriages. 

Marrying  a  woman  under  the  age  Umit;  *^  marriages  of  a 
white  with  a  negro;  **  incestuous  marriages;  *^  bigamous  mar- 
riages.^*^ 

Age  limit:  Male  16  years.     Female  14  years.^^ 

81  Birdseye's  Stats.  &  Codes  (1901),  p.  306. 

82  Birdseye's  Stats.  &  Codes  (1901),  p.  2283. 

83  Birdseye's  Stats.  &  Codes  (1901),  p.  1042. 
8^  Code  (1883),  §  1810. 

85  Code  (1883),  §  1810. 

86 Code  (1883),  §§  1283,  1284. 

87  Code  (1883),  §  1083. 

88  Code  (1883),  §  1084. 

89 Code  (1883),  §§  1060,  1061. 

90  Code  (1883),  §988. 

91  Code  (1883),  §  1809. 

[217] 


THE   LAW  OF   MARRIAGE    AND    DIVORCE. 

NORTH  DAKOTA. 

Marriages  proliibited. 

Between  lineal  ascendants  and  descendants,  brothers  and 
sisters,  uncles  and  nieces,  aunts  and  nephews,  and  first 
cousins.^^ 

Void  marriages. 
Incestuous  marriages;  ^^  bigamous  marriages.^"* 

Voidable  marriages. 

Mental  and  physical  disabiUty  at  time  of  marriage;  marriages 
below  age  limit;  marriages  induced  by  fraud  or  force  unless  the 
parties  afterward  Uved  together;  ^^  bigamous  marriages. ^^ 

Criminal  m.arriages. 

Marriages  compelled  by  force,  menace,  or  duress;  ^^  incestuous 
marriages;  ^^  bigamous  marriages.*'^ 

Age  hmit:  Male  18  years.     Female  15  years. ^°° 

OHIO. 

Marriages  proliibited. 

Between  lineal  ascendants  and  descendants,  brothers  and 
sisters,  uncles  and  nieces,  aunts  and  nephews,  and  first  cousins.^ 

Crim.inal  m.arriages. 

Bigamous  marriages;  incestuous  marriages.^ 
Age  limit:  Male  18  years.     Female  16  years.^ 

92  Rev.  Code  (1895),  §  2722. 

93  Rev.  Code  (1895),  §  2722. 

94  Rev.  Code  (1895),  §  2723. 

95  Rev.  Code  (1895),  §  2731. 

96  Rev.  Code  (1895),  §  2723, 

97  Rev.  Code  (1895),  §  7163. 

98  Rev.  Code  (1895),  §  7185. 

99  Rev.  Code  (1895),  §  7183. 

100  Rev.  Code  (1895),  §2721. 

1  Bates'  Anno.  Stats  (1904),  §  6384. 

2  Bates'  Anno.  Stats.  (1904),  §§  7018,  7019. 

3  Bates'  Anno.  Stats.  (1904),  §  6384. 

[218] 


SYNOPSIS   OF   THE    :\IARRIAGE    STATUTES. 

OKLAHOMA. 

Marriages  prohibited. 

Between  lineal  ascendants  and  descendants,  stepfather  and 
stepdaughter,  stepmother  and  stepson,  father-in-law  and  daugh- 
ter-in-law, mother-in-law  and  son-in-law,  brother  and  sister, 
uncle  and  niece,  aunt  and  nephew,  first  cousins;'*  marriages 
"wdthin  six  months  after  a  divorce ;  ^  marriages  of  whites  mth 
negroes;  ^  marriages  under  age  of  consent;  ^  marriages  without 
license.* 

Void  marriages. 

Incestuous  marriages.^ 

Voidable  marriages. 

Marriages  of  parties  wanting  age  or  understanding.^" 

Criminal  marriages. 

Marriages  compelled  by  force,  menace,  or  duress;  ^^  prohibited 
marriages;  ^^  bigamous  marriages. ^^ 

Age  Umit:  Male  18  years.     Female  15  years.^'* 

OREGON. 

Prohibited  m.arriages. 

Between  first  cousins  or  relatives  nearer  of  kin;  bigamous 
marriages ;  and  marriages  of  whites  with  negroes  or  MongoUans 
of  one-fourth  blood. ^^ 

4  Wilson's  Anno.  Stats.  (1903),  §  3483. 

5  Wilson's  Anno.  Stats.  (1903),  §  4840. 
8  Wilson's  Anno.  Stats.  (1903),  §  3496. 

7  Wilson's  Anno.  Stats.  (1903),  §  3484. 

8  Wilson's  Anno.  Stats.  (1903),  §  3485. 

9  Wilson's  Anno.  Stats.  (1903),  §  3483. 

10  Wilson's  Anno.  Stats.  (1903),  §  4843. 

11  Wilson's  Anno.  Stats.  (1903),  §  3482. 

12  See  above  and  Wilson's  Anno.  Stats.  (1903),  §§  2276,  3497. 

13  Wilson's  Anno.  Stats.  (1903),  §§  2272-2274,  4841. 
"  Wilson's  Anno.  Stats.  (1903),  §  3484. 

15  Bel.  &  Cot.  Codes  (1902),  §  5217. 

[219] 


THE    LAW   OF   MARRIAGE    AND    DIVORCE. 

Void  marriages. 

Incestuous  marriages;  bigamous  marriages;  marriages  where 
either  party  is  of  one-fourth  or  more  negro,  Cliinese,  or  Kanaka 
blood  or  more  than  one-half  Indian  blood.^^ 

Voidable  marriages. 

Marriages  induced  by  fraud  or  force,  and  marriages  where 
either  party  is  wanting  in  age  or  miderstanding.^' 

Crim.inal  marriages. 

Marriage  of  a  female  under  sixteen  years  \^-ithout  parents' 
consent  ^*  and  void  marriages.^^ 

Age  limit:  Male  18  years.     Female  15  years.-" 


PENNSYLVANIA. 
Prohibited  m.arriages. 

Between  ascendants  and  descendants,  stepparents  and  step- 
cliildren,  brothers  and  sisters,  uncles  and  nieces,  aunts  and 
nephews,  ^^  first  cousins,  ^^  and  marriages  with  the  wives  or  hus- 
bands of  ascendants  or  descendants. 

Void  marriages. 

Bigamous  marriages;  -^  prohibited  marriages.-^ 

Voidable  marriages. 

Consent  obtained  by  force,  fraud,  or  coercion,  if  not  subse- 
quently ratified.'^ 

16  Bel.  &  Cot.  Codes  (1902),  §§  502,  1999. 
n  Bel.  &  Cot.  Codes  (1902),  §§  503,  5218. 

18  Bel.  &  Cot.  Codes  (1902),  §  1928. 

19  Bel.  &  Cot.  Codes  (1902),  §§  1918,  1938,  2000. 

20  Bel.  &  Cot.  Codes  (1902),  §  5216. 

21  Brightly's  Purd.  Dig.  (1894),  p.  512,  §  239. 

22  Brightly's  Dig.  (1903),  p.  409,  §  1. 

23  Brightly's  Dig.  (1903),  p.  74,  §  2. 

24  Brightly's  Purd.  Dig.  (1894),  p.  512,  §  239,  p.  683,  §  2;  Brightly's  Dig. 
(1903),  p.  409,  §  1. 

25  Brightly's  Purd.  Dig.  (1894),  p.  684,  §  7. 

[  220  ] 


SYNOPSIS    OF   THE    MARRIAGE   STATUTES. 

Criminal  marriages. 

Bigamous  marriages;  ^^  incestuous  marriages.^' 

Age  limit:  Male  21  j^ears.     Female  21  years.     These  are  the 

ages  under  which  consent  of  parent  or  guardian  is  required. ^^ 

PHILIPPINES. 

Prohibited  marriages. 

Between  ascendants  and  descendants  of  consanguinity  and 
affinity  legitimate  or  natural ;  between  collaterals  by  legitimate 
consanguinity  or  affinity  to  the  fourth  degree;  between  collat- 
erals by  natural  consanguinity  or  affinity  to  the  second  degree ; 
between  adoptive  parents  and  children  and  the  same  by  affin- 
ity; between  the  legitimate  descendants  of  the  adopter  and 
adopted,  while  the  adoption  continues;  between  convicted 
adulterers;  between  a  surviving  spouse  and  the  author  of  the 
death  of  the  deceased  spouse. ^^ 

Marriage  of  a  minor  without  the  consent  of  parent  or  guard- 
ian, or  of  a  person  who  has  not  requested  advice;  marriage  of 
a  widow  within  three  hundred  and  one  days  of  the  dissolution 
of  her  former  marriage  or  before  childbirth;  marriage  of  a 
guarcUan  or  his  descendants  to  his  ward  before  approval  of  liis 
accounts.^" 

The  government  may  waive  the  prohibition  as  to  widows  as 
to  the  third  and  fourth  degrees  of  collateral  consanguinity,  as 
to  collateral  affinity  and  as  to  adoptive  relatives.^ ^ 

Void  marriages. 

Bigamous  marriages;  ^^  marriages  by  error  as  to  person;  mar- 
riages procured  by  compulsion  or  intimidation;  marriages  by 

26  Brightly's  Dig.  (1903),  p.  74,  §  2. 

27  Brightly's  Purd.  Dig.  (1894),  p.  512,  §  239. 

28  Brightly's  Dig.  (1903),  p.  410,  §  5. 

29  Civil   Code  (1899),  Art.  84. 

30  Civil  Code  (1899),  Art.  45. 

31  Civil  Code  (1899),  Art.  85. 

32  Civil  Code  (1899),  Art.  83. 

[221] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

abduction;  marriages  not  celebrated  by  competent  judge  and 
without  witnesses;  incestuous  marriages.^^ 

Voidable  marriages. 

Marriages  under  the  age  of  consent;  marriages  of  persons  of 
unsound  mind;  marriages  of  persons  physically  impotent;  mar- 
riages of  persons  in  holy  or  canonical  orders. ^^ 

Criminal  marriages. 

Marriage  of  a  minor  without  consent  of  parent;  '^  marriage 
of  a  widow  within  three  hundred  and  one  days  after  death  of 
her  husband,  or  before  deUvery;  ^^  incestuous  marriages;  ^^  big- 
amous marriages;  ^*  marriages  notwithstanding  impediment;  ^* 
marriage  of  guardian  with  ward  before  approval  of  his  ac- 
counts.^*^ 

Age  limit:  Male  14  years.    Female  12  years."*^ 

PORTO  RICO. 

Marriages  prohibited. 

Between  ascendants  and  descendants  by  consanguinity  or 
affinity,  brothers  and  sisters,  uncles  and  nieces,  aunts  and 
nephews,  first  cousins,  uncles  and  great  nieces,  aunts  and 
great  nephews,  parents  and  their  children,  by  adoption 
or  otherwise,  between  adopted  persons  and  surviving  spouse 
of  adopter,  or  between  adoptive  parents  and  surviving  spouse 
of  adopted  person;  between  convicted  adulterers  for  five 
years  after  judgment;  with  the  murderer  of  a  spouse.^^ 

33CivU  Code,  (1899),  Art.  101. 

34  Civil  Code  (1899),  Art.  83. 

35  Penal  Code  (1900),  Art.  475. 

36  Penal  Code  (1900),  Art.  476. 

37  Penal  Code  (1900),  Art.  443. 

38  Penal  Code  (1900),  Art.  471. 

39  Penal  Code  (1900),  Arts.  472,  473. 

40  Penal  Code  (1900),  Art.  478. 

41  CivU  Code  (1899),  Art.  83. 

42  Rev.  Stats,  and  Codes  (1902),  pp.  806,  807,  §  132. 

[222] 


SYNOPSIS    OF    THE    MARRIAGE    STATUTES. 

The  district  court  may  waive  the  impediment  of  the  fourth 
degree  of  consanguinity.^^ 

Void  marriages. 

All  marriages  not  contracted  in  accordance  with  the  Civil 
Code/^  except  natural  marriages."*^ 

Voidable  marriages. 

Marriages  below  the  age  limit;  marriages  by  violence  or  in- 
timidation; marriage  of  a  person  under  mental  or  physical  dis- 
abihty  at  time  of  marriage;  bigamous  marriages;  marriages 
wdthout  consent  of  parent  or  guardian;  marriage  of  a  woman 
witliin  three  hundred  and  one  days  of  dissolution  of  her  former 
marriage  or  before  birth  of  child;  marriage  of  a  tutor  or  his 
descendants  with  his  ward  until  accounts  are  settled. ^^ 


Crim.inal  marriages. 

Bigamous   marriages;'*^   incestuous  marriages ;^^  marriages 
procured  by  force,  menace,  or  duress. ^^ 
Age  limit:  Male  18  years.     Female  16  years. ^° 


RHODE  ISLAND. 

Prohibited  marriages. 

Between  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews;  with  ascendants  or  de- 
scendants by  affinity.^^ 

43  Rev.  Stats,  and  Codes  (1902),  p.  807,  §  133. 
"  Rev.  Stats,  and  Codes  (1902),  p.  817,  §  178. 

45  Laws  of  1903,  p.  116. 

46  Rev.  Stats,  and  Codes  (1902),  pp.  805-807,  §§  131,  134. 

47  Rev.  Stats,  and  Codes  (1902),  p.  536,  §§  271-274. 

48  Rev.  Stats,  and  Codes  (1902),  p.  536,  §  275. 

49  Rev.  Stats,  and  Codes  (1902),  p.  533,  §  259. 

50  Rev.  Stats,  and  Codes  (1902),  p.  805,  .§  131. 

51  Gen.  Laws  (1896),  p.  621,  §§  1,  2. 

[223] 


THE    LAW   OF   MARlilAGE   AND    DIVORCE 

Void  marriages. 

Incestuous  marriages;  ^-  bigamous  marriages;  marriage  with 
an  idiot  or  lunatic.^^ 

Voidable  marriages. 

Divorces  are  to  be  decreed  in  case  of  marriages  originally 
void  or  voidable  and  in  case  of  defendants  deemed  to  be  civilly 
dead  or  presumed  to  be  actually  dead.^"* 

Criminal  marriages. 

Bigamous  marriages;  ^^  incestuous  marriages.^^ 

Age  limit:  Male  21  years.     Female  21  years.     These  are  the 

ages  below  which  the  consent  of  parent  or  guardian  is  re- 

quired.^^ 

SOUTH  CAROLINA. 
Prohibited  m.arriages. 

Between  ascendants  or  descendants  by  consanguinity  or  af- 
finity, brothers  and  sisters,  stepparents  and  stepchildren, 
uncles  and  nieces,  aunts  and  nephews;  marriages  of  idiots  and 
lunatics.^* 

Void  m.arriages. 

Marriages  of  whites  with  Indians,  negroes,  mulattoes,  mes- 
tizoes, or  half-breeds;  ^^  bigamous  marriages.^" 

Voidable  marriages. 

Marriages  wanting  consent  or  such  as  show  that  there  was  no 
contract.^^ 

52  Gen.  Laws  (1896),  p.  621,  §  3. 

53  Gen.  Laws  (1896),  p.  621,  §  5. 

54  Gen.  Laws  (1896),  p.  633,  §  1. 

55  Gen.  Laws  (1896),  p.  999,  §  1. 

58  Gen.  Laws  (1896),  pp.  1000,  1001,  §  9. 

57  Gen.  Laws  (1896),  p.  623,  §  11. 

58  Civil  Code  (1902),  §  26.58. 
5a  Crim.  Code  (1902),  §  293. 
eu  Civil  Code  (1902),  §  2661. 
«i  Civil  Code  (1902),  §  2660. 

[224] 


SYNOPSIS    OF   THE    MARRIAGE    STATUTES. 

Criminal  marriages. 

Bigamous  marriages;  ^^  marriages  by  abduction;  ^'  marriages 
of  whites  \\ath  Indian,  negro,  mulatto,  mestizo,  or  half-breed;  ^"^ 
incestuous  marriages.^^ 


SOUTH  DAKOTA. 

Marriages  prohibited. 

Between  lineal  ascendants  and  descendants,  brothers  and 
sisters,  uncles  and  nieces,  aunts  and  nephews,  first  cousins,  and 
stepparents  and  stepchildren.^^ 

Void  marriages. 

Incestuous  marriages;  ^^  bigamous  marriages.^* 

Voidable  marriages. 

Physical  or  mental  disabihty  at  time  of  marriage;  marriage 
induced  by  force  or  fraud;  bigamous  marriages;  marriages  un- 
der the  age  of  consent.®* 

Criminal  marriages. 

Marriage  of  a  female  induced  by  force,  menace,  or  duress; '° 
by  false  personation;  ^^  prohibited  marriages  except  those  of 
steprelatives; '-  bigamous  marriages. ^^ 

Age  hmit:  Male  18  years.     Female  15  years.'^^ 

62  Crim.  Code  (1902),  §  289. 
63Crim.  Code  (1902),  §  288. 

64  Crim.  Code  (1902),  §  293. 

65  Crim.  Code  (1902),  §  295. 

66  CivU  Code  (1903),  §§  38,  39. 
67CivUCode  (1903),  §38. 

68  CivU  Code  (1903),  §40. 

69  Civil  Code  (1903),  §61. 

70  Penal  Code  (1903),  §  333. 

71  Penal  Code  (1903),  §  640. 
■2  Penal  Code  (1903),  §  350. 

73  Penal  Code  (1903),  §  348. 

74  Civil  Code  (1903),    §  36. 

15  [ 225  ] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

TENNESSEE. 
Marriages  prohibited. 

With  a  lineal  ancestor  or  descendant,  with  the  lineal  ancestor 
or  descendant  of  either  parent,  with  the  child  of  a  grandparent, 
with  the  lineal  descendant  of  husband  or  wife,  with  the  husband 
or  wife  of  a  parent  or  hneal  descendant;  ^^  between  whites  and 
negroes  or  descendants  of  negroes  to  the  third  generation.' 


76 


Void  marriages. 

Bigamous  marriages;  where  either  party  is  impotent;  where 
the  woman  was  pregnant  at  time  of  marriage;  ^^  incestuous  mar- 
riages.'''* 

Voidable  marriages. 

The  court,  if  satisfied  that  the  complainant  is  entitled  to  such 
relief,  may  pronounce  a  marriage  null  and  void  from  the  be- 
ginning.'^^ 

Criminal  marriages. 

Marriage  of  a  female  compelled  by  force,  menace,  or  duress;  *° 
marriages  of  whites  with  negroes  or  descendants  of  negroes  to 
the  third  generation;  *^  bigamous  marriages;  *^  incestuous  mar- 
riages.*^ 

Age  limit:  Male  14  years.     Female  12  years.*^ 

TEXAS. 
Marriages  prohibited. 

Between  Uneal  ascendants  and  descendants,  brothers  and 
sisters,  uncles  and  nieces,  aunts  and  nephews;  with  ascendants 

75  Code  (1896),  §4185. 
78  Code  (1896),  §4186. 

77  Code  (1896),  §  4201,  and  note  7. 

78  Code  (1896),  §4185. 

79  Code  (1896),  §4218. 

80  Code  (1896),  §6460. 

81  Code  (1896),  §4187. 

82  Code  (1896),  §  6760. 

83  Code  ( 1 896) ,  §  §  6757-6759 . 

84  Warwick  v.  Cooper,  5  Sneed,  660. 

[  226  ] 


SYNOPSIS    OF   THE    MARRIAGE    STATUTES. 

or  descendants  of  spouse;  '^^dth  sundving  spouse  of  parent  or 
child/^  and  marriages  of  whites  witli  colored  persons.*^ 

Void  marriages. 

Marriages  of  whites  with  negroes." 

Voidable  marriages. 

Consent  obtained  by  force  or  fraud,  marriages  under  the  age 
of  consent,  insanity  at  time  of  marriage,  and  physical  inca- 
pacity.** 

Criminal  marriages. 

Prohibited  marriages;  *^  bigamous  marriages.*" 
Age  Umit:  Male  16  years.     Female  14  years.*^ 

UTAH. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews,  and  any  persons  more 
nearly  related  than  the  fourth  degree  of  the  civil  law;  ^-  biga- 
mous marriages;  marriages  between  whites  and  negroes;  mar- 
riages between  whites  and  Mongohans;  marriages  of  lunatics  or 
idiotic  persons.^^ 

Void  marriages. 

Incestuous  marriages;  ^^  marriage  with  an  idiot  or  lunatic; 
bigamous  marriages;  marriages  by  an  unauthorized  person; 

85  White's  Penal  Code,  (1897),  Arts.  350,  351. 
88  Sayles's  Civil  Stats.  (1897),  Art.  2959. 

87  Sayles's  Civil  Stats.  (1897),  Art.  2959. 

88  Sayles's  Civil  Stats.  (1897),  Art.  2976. 

89  White's  Penal  Code  (1897),  §§  349,  350,  351,  346. 

90  White's  Penal  Code  (1897),  §  344. 

91  Sayles's  Civil  Stats.  (1897),  §  2955. 

92  Rev.  Stats.  (1898),  §  1183. 

93  Rev.  Stats.  ri898),  §1184. 

94  Rev.  Stats.  (1898),  §  1183. 

[227] 


THE   LAW   OF    MARRIAGE   AND   DIVORCE. 

marriages  under  age  of  consent;  marriages  between  a  white 
person  and  a  negro  or  Mongolian. ^^ 

Voidable  marriages. 

Consent  obtained  by  force  or  fraud,  insanity  at  time  of  mar- 
riage, physical  incapacity,  female  marrying  under  fourteen 
years  of  age,  male  under  sixteen  years  of  age,  and  male  under 
twenty-one  years  and  female  under  eighteen  years  without 
consent  of  parents.^® 

Criminal  marriages. 

Marriages  by  false  impersonation;  ^"^  bigamous  marriages;  ^* 
incestuous  marriages. ^^ 

Age  Umit:  Male  16  years.    Female  14  years. ^°° 

VERMONT. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  ascendants  or  descend- 
ants of  wife  or  husband,  brothers  and  sisters,  uncles  and  nieces, 
aunts  and  nephews;  with  ascendant  or  descendant  of  spouse 
with  surviving  spouse  of  ascendant  or  descendant.^ 

Void  marriages. 

Bigamous  marriages;  ^  incestuous  marriages.^ 

Voidable  marriages. 

Mental  or  physical  disability  at  time  of  marriage,  marriages 
induced  by  force  or  fraud,  and  marriages  below  age  Umit.^ 

95  Rev.  Stats.  (1898),  §  1184. 

96  Rev.  Stats.  (1898),  §§  1214,  1215. 

97  Rev.   Stats.  (1898),  §  4393. 

98  Rev.  Stats.  (1898),  §  4208. 

99  Rev.  Stats.  (1898),  §  4211. 

100  Rev.  Stats.  (1898),  §  1184. 

1  Stats.  (1894),  §§  2628,  2629. 

2  Stats.  (1894),  §  2631. 

3  Stats.  (1894),  §2658. 
<  Stats.  (1894),  §2661. 

[  228  ] 


SYNOPSIS   OF   THE   MARRIAGE   STATUTES. 

Criminal  marriages. 

Marriage  within  three  years  by  libellee  to  other  than  libel- 
lant;  ^  bigamous  marriages;  ^  incestuous  marriages/ 

Age  limit:  Male  21  years.  Female  18  years.  These  are  ages 
under  which  consent  of  parent  or  guardian  is  required.^ 


VIRGINIA. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews;  with  surviving  spouse 
of  ascendant  or  descendant;  \vith  ascendant  or  descendant  of 
spouse.^ 


Void  marriages. 

Marriages  between  white  persons  and  colored;  bigamous  mar- 
riages ;  ^°  marriages  under  age  of  consent  and  separation  during 
nonage.  ^^ 

Voidable  marriages. 

Void  marriages  may  be  so  declared. ^^  Marriages  of  persons 
within  the  prohibited  degrees;  marriages  of  insane  persons  and 
persons  physically  incapable  may  be  annulled. ^^ 


Criminal  marriages. 

Marriages   compelled   by    force;  ^^    bigamous    marriages; 

5  Stats.  (1894),  §§  2703,  2704. 

«  Stats.  (1894),  §  5059. 

^  Stats.  (1894),  §  5062. 

8  Stats.  (1894),  §  §  2637,  2736. 

sPoUard's  Code  (1904),  §§  2224,  2225. 

10  Pollard's  Code  (1904),  §  2252. 

11  Pollard's  Code  (1904),  §  2254. 

12  Pollard's  Code  (1904),  §  2255. 

13  Pollard's  Code  (1904),  §  2252. 
1*  Pollard's  Code  (1904),  §  3678. 
15  PoUard's  Code  (1904),  §  3781. 

[229] 


15 


THE    LAW   OF   MARRIAGE    AND    DIVORCE. 

incestuous  marriages;  ^^  marriages  of  whites  with  colored  per- 
sons. ^^ 
Age  limit:  Male  14  years.    Female  12  years.^* 

WASHINGTON. 

Marriages  prohibited. 

Between  those  nearer  related  than  second  cousins,  ascendants 
or  descendants  of  wife  or  husband,  wife  or  husband  of  ascend- 
ant or  descendant,  and  bigamous  marriages.^^ 

Voidable  marriages. 

Consent  obtained  by  force  or  fraud;  marriages  under  the  age 
of  consent;  insanity  at  time  of  marriage.^" 

Criminal  marriages. 

All  prohibited  marriages  are  criminal.^^ 

Age  Umit:  Male  21  years.  Female  18  years.  These  are  ages 
at  which  marriage  may  be  contracted;  ^^  but  apparently  with 
the  consent  of  parent  or  guardian  marriage  may  be  contracted 
earlier.^^ 

WEST  VIRGINIA. 

Marriages  prohibited. 

Between  ascendants  and  descendants,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews;  marriage  of  a  man  with 
his  stepmother,  half-sister,  uncle's  wife,  son's  wife,  wife's  daugh- 
ter, granddaughter,  or  stepdaughter  or  nephew's  widow;  mar- 
riage of  a  woman  with  her  corresponding  male  relatives. ^^ 

16  Pollard's  Code  (1904),  §  3783. 

17  Pollard's  Code  (1904),  §  3788. 

18  Pollard^s  Code  (1904),  §  2254. 

19  Ball.  Codes  &  Stats.  (1S97),  §  4468. 

20  Ball.  Codes  &  Stats.  (1897),  §  4477. 

21  Ball.  Codes  &  Stats.  (1897),  §§  7229,  7235. 

22  Ball.  Codes  &  Stats.  (1897),  §  4467. 

23  Ball.  Codes  &  Stats.  (1897),  §  4479. 

24  Code  (1899),  pp.  655,  656,  §§  9,  10. 

[  230  ] 


SYNOPSIS    OF   THE    MARRIAGE    STATUTES. 

Voidable  marriages. 

Marriages  below  the  age  limit,  insanity,  physical  disability, 
prohibited  marriages,  bigamous  marriages,  and  marriages  be- 
tween a  white  person  and  a  negro. ^^ 

Criminal  m.arriages. 

Bigamous  marriages;  -^  incestuous  marriages;  ^^  marriage  of 
a  white  person  with  a  negro. ^* 

Age  limit:  Male  18  years.     Female  16  years.^^ 


WISCONSIN. 
Marriages  prohibited. 

Between  parties  nearer  of  kin  than  first  cousins  whether  of 
the  half  or  of  the  whole  blood ;  bigamous  marriages ;  ^°  marriages 
contracted  within  one  year  after  divorce  of  either  party  unless 
authorized  by  judge  who  granted  divorce. ^^ 

Void  marriages. 

Marriages  of  insane  persons  or  idiots;  ^^  marriages  of  divorced 
persons  within  one  year  after  decree ;  ^^  incestuous  marriages 
and  bigamous  marriages.^"* 

Voidable  raarriages. 

Marriages  induced  by  fraud  or  force  or  contracted  when 
either  party  is  incapable  of  consent  for  want  of  age  or  under- 
standing; when  the  parties  do  not  live  together  after  acquiring 
knowledge,  freedom,  or  capacity. ^^ 

25  Code  (1899),  p.  660,  §1. 

26  Code  (1899),  p.  971,  §1. 

27  Code  (1899),  p.  972,  §3. 

28  Code  (1899),  p.  972,  §8. 

29  Code  (1899),  p.  661,  §2. 

30  Stats,  of  1898,  §  2330. 

31  Laws  of  1905,  p.  785,  c.  456. 

32  Stats,  of  1898,  §  2330. 

33  Laws  of  1905,  p.  785,  c.  456. 

34  Stats,  of  1898,  §  2349. 

35  Stats  of  1898,  §§  2350,  2353. 

[  231  ] 


THE    LAW   OF   MARRIAGE   AND    DIVORCE. 

Criminal  marriages. 
Prohibited  marriages. 
Age  limit:  Male  18  years.     Female  15  years.^^ 

WYOMING. 

Marriages  prohibited. 

Between  lineal  ascendants  and  descendants,  brothers  and 
sisters,  of  half  as  well  as  of  whole  blood,  uncles  and  nieces, 
aunts  and  nephews,  and  first  cousins. 

This  prohibition  does  not  extend  to  any  persons  not  related 
by  consanguinity.^' 

Void  m.arriages. 

Former  husband  or  wife  living;  marriage  of  an  insane  person 
or  an  idiot;  incestuous  marriages.^* 

Voidable  marriages. 

Marriages  below  the  age  limit;  marriages  procured  by  fraud 
or  force.  All  these  marriages  may  be  ratified  by  voluntary  co- 
habitation afterward. ^^ 

Crim.inal  m.arriages. 

Bigamous  marriages;  ^"  incestuous  marriages.^^ 
Age  Hmit:  Male  18  years.    Female  16  years.^^ 

38  stats,  of  1898,  §  2329. 

37  Rev.  Stats.  (1899),  §  2981. 

38  Rev.  Stats.  (1899),  §  2981. 

39  Rev.  Stats.  (1899),  §  2982. 

40  Rev.  Stats.  (1899),  §  5054. 
"  Rev.  Stats.  (1899),  §  5055. 
*2  Rev.  Stats.  (1899),  §  2956. 


[  232  ] 


SYNOPSIS    OF   THE   DIVORCE   STATUTES. 


SYNOPSIS    OF    THE    DIVORCE     STATUTES    OF    THE     STATES    AND 

TERRITORIES. 

ALABAMA. 
Grounds  for  absolute  divorce. 

Adultery. 

Crime  against  nature,  whether  with  mankind  or  beast,  either 
before  or  after  marriage. 

Imprisonment  for  two  years  in  penitentiary,  the  sentence 
being  for  seven  years  or  longer. 

Voluntary  abandonment  for  two  years. 

Habitual  drunkenness  after  marriage. 

Impotency  at  the  time  of  marriage.^ 

Pregnancy  of  wife  before  marriage,  without  knowledge  or 
agency  of  husband.^ 

Cruelty  attended  by  actual  violence  which  endangers  life  or 
health,  or  where  there  is  reasonable  apprehension  of  such 
danger.^ 

Grounds  for  partial  divorce. 

Legal  separations  are  granted  for  cruelty  by  either  party, 
or  any  cause  that  would  justify  an  absolute  decree  of  divorce 
at  the  option  of  the  plaintiff.^ 

Nonage. 

Male  17.  Female  14.  Such  marriages  are  voidable  and 
divorce  is  the  proper  remedy,  but  if  the  plaintiff  cohabits  with 
the  defendant  after  arriving  at  lawful  age,  the  marriage  is 
ratified.^ 

1  Civil  Code  (1896),  §  1485. 

2  Civil  Code  (1896),  §  1486. 

3  Civil  Code  (1896),  §  1487. 

*  Civil  Code  (1896),  §§  1502,  1503. 
5  Civil  Code  (1896),  §  2839  and  cases. 

[233] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 
Residence. 

If  the  defendant  is  a  non-resident,  one  year's  residence  must 
be  alleged  and  proved  on  behalf  of  the  plaintiff,®  except  in  case 
of  divorce  for  abandonment,  where  three  years'  residence  on 
the  part  of  plaintiff  must  be  alleged  and  proved.'' 

Jurisdiction. 

Chancery  court  and  city  courts  with  equity  powers.* 

Service, 

May  be  made  personally  or  by  pubhcation.^ 

Evidence. 

No  decree  can  be  rendered  upon  a  confession. 

Where  both  parties  have  committed  adultery  no  divorce 
will   be  granted.^" 

Alimony. 

On  granting  a  decree,  alimony  may  be  allowed,  ^^  and  must  be 
allowed  during  pendency  of  libel.^' 

A  divorce  deprives  the  husband  of  any  control  over  the  wife's 
separate  estate. ^^ 

An  absolute  divorce  bars  dower. ^'^ 

Care  and  custody  of  children. 

The  court  may  decree  the  care  and  custody  of  the  children 
to  either  party. 


15 


Remarriage. 

May  be  permitted  by  decree  of  court  or  by  order  on  petition 

6  Civil  Code  (1896),  §  1494. 

7  Civil  Code  (1896),  §  1492. 
sCivUCode  (1896),  §1493. 

9  Civil  Code  (1896),  §§  682,  686. 

10  Civil  Code  (1896),  §  1491. 

11  Civil  Code  (1896),  §§  1496,  1497. 

12  Civil  Code  (1896),  §  1495. 

13  Civil  Code  (1896),  §  1500. 

14  Civil  Code  (1896),  §  1508. 

15  Civil  Code  (1896),  §  1501. 

[  234  ] 


SYNOPSIS   OF  THE  DIVORCE   STATUTES. 

when  the  decree  is  silent,  ^^  but  not  within  sixty  days  or  dur- 
ing pendency  of  an  appeal. ^^ 

Bigamy. 

Unheard  of  absence  for  five  years  bars  prosecution  for 
bigamy.^* 

ARIZONA. 

Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony,  provided  that  no  suit  on  this  ground 
shall  be  sustained  until  one  year  after  final  judgment  of  con- 
viction; and  provided  further  that  the  husband  has  not  been 
convicted  on  the  testimony  of  the  vnie,  or  the  wife  convicted 
on  the  testimony  of  the  husband.  It  is  also  a  cause  for  divorce 
when,  prior  to  the  marriage,  either  party  shall  have  been  con- 
victed of  felony  or  infamous  crime  in  any  other  state,  territory 
or  country,  without  the  knowledge  of  the  other  party  at  the 
time  of  marriage. 

Where  either  party  is  guilty  of  excesses,  cruel  treatment  or 
outrages  toward  the  other,  whether  by  the  use  of  personal 
violence  of  any  other  means. 

Wilful  desertion  for  one  year. 

Physical  incapacity  from  marriage  to  the  time  of  bringing 
action. 

Neglect  to  provide  for  wife  for  one  year. 

Pregnancy  by  other  than  husband. 

Habitual  intemperance.^ 

Grounds  for  annulment  of  marriage. 
Any  impediment  that  renders  contract  void.^ 

16  Civil  Code  (1896),  §  1488. 

17  General  Laws  of  1903,  p.  49. 
isCrim.  Code  (1896),  §  4407- 

1  Session  Laws  (1903),  p.  52. 

2  Rev.  Stats.  (1901),  §3112. 

[235] 


SYNOPSIS   OF   THE   DIVORCE    STATUTES. 
Grounds  for  partial  divorce. 

When  husband  wilfully  deserts  or  abandons  his  wife,  she 
may  apply  for  separate  maintenance.^ 

Consanguinity;  affinity;  and  miscegenation. 

These  marriages  are  void  without  legal  proceedings,  if  the 
marriages  were  celebrated  in  the  state."* 

Nonage. 

Male  18.    Female  16.    But  if  the  parties  cohabit  after  ar- 
riving at  lawful  age,  the  marriage  is  ratified  by  their  own  act.^ 

Residence. 

One  year  in  the  territory  and  six  months  in  the  county.® 

Jurisdiction. 

District  court.'' 

Service. 

May  be  made  personally  or  by  publication  if  the  defendant 
is  out  of  the  territory.* 

Evidence. 

Confessions  and  declarations  of  parties  must  be  corroborated. 
No  decree  will  be  given  by  default.^ 

Alimony. 

Alimony  and  counsel  fees  may  be  allowed  'pendente  lite}^ 
Division  of  community  property  may  be  allowed. ^^ 

Remarriage. 
Permitted.*^ 

3  Rev.  Stats.  (1901),  §3121. 

4  Rev.  Stats.  (1901),  §§3092,  3093. 

5  Rev.  Stats.  (1901),  §  3088. 
8  Rev.  Stats.  (1901),  §3114. 
^  Session  Laws  (1903),  p.  52. 

8  Rev.  Stats.  (1901),  §§  1320,  1329. 

9  Rev.  Stats.  (1901),  §  3115. 
10  Rev.  Stats.  (1901),  §3121. 

"  Rev.  Stats.  (1901),  §  3119,  et  seq. 
12  Rev.  Stats.  (1901),  §3118. 
[236] 


SYNOPSIS   OF   THE    DIVORCE    STATUTES. 

ARKANSAS. 
Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony  or  infamous  crime. 

Cruel  or  barbarous  treatment,  or  such  personal  indignity  as 
renders  the  plaintiff's  condition  intolerable. 

Desertion   one   year. 

Habitual  drunkenness  one  year. 

Former  husband  or  wife  living. 

Where  either  party  at  time  of  marriage  was  and  still  is  im- 
potent.* 

Grounds  for  partial  divorce. 

The  court  may  grant  a  legal  separation  for  any  cause  that 
would  justify  an  absolute  decree  at  its  discretion  or  the  option 
of  the  plaintiff.^ 

Consanguinity  and  miscegenation. 
These  marriages  are  void  \\ithout  legal  proceedings.' 

Nonage. 

Male  17.    Female  14." 

Residence. 

The  plaintiff  must  prove  a  residence  in  the  state  for  one  year 
prior  to  commencement  of  suit;  that  the  cause  of  divorce  ex- 
isted or  occurred  in  the  state  or,  if  out  of  the  state,  either  that 
it  was  a  legal  cause  of  divorce  in  the  state  where  it  occurred  or 
existed,  or  that  plaintiff's  residence  was  then  in  the  state;  and 
that  the  cause  of  divorce  occurred  or  existed  within  five  years 
before  the  commencement  of  suit.^ 

Jurisdiction. 
Circuit  court.^ 

1  Sand.  &  Hill  Dig.,  (1894),  §  2505;  Acts  of  1895,  p.  76. 

2  Sand.  &  Hill  Dig.,  (1894),  §  2505. 

3  Sand.  &  Hill  Dig.,  (1894),  §§  4908,  4909. 

4  Sand.  &  Hill  Dig.,  (1894),  §  4907. 

5  Sand.  &  Hill  Dig.,  (1894),    §  2511. 

6  Sand.  &  Hill  Dig.,  (1894),    §  2505. 

[237] 


"the  law  of  marriage  and  divorce. 

Evidence. 

The  complaint  is  not  taken  as  true  for  failure  of  defendant 
to  answer.'' 
Alimony. 

Is  allowed  upon  divorce  at  wife's  instance.  She  is  entitled 
to  one-third  of  husband's  personalty,  absolutely,  and  to  one- 
tliird  of  his  lands  for  life.  On  final  judgment  each  party  is 
restored  to  undisposed  of  property  which  he  or  she  brought 
into  the  marriage.* 

Maiden  name. 
The  court  may  restore  maiden  name  to  wife.* 

Remarriage. 

Is  permitted  after  divorce. 

Where  the  husband  or  wife  resides  beyond  the  limits  of  the 
United  States  for  five  successive  years  or  has  not  been  known 
to  be  hving  for  a  hke  period,  a  subsequent  marriage  by  the 
other  is  valid.  ^° 

CALIFORNIA. 

Grounds  for  absolute  divorce. 

Adultery.  Action  must  be  commenced  within  two  years  of 
commission  or  discovery. 

Conviction  of  felony.  Action  must  be  begun  within  two 
years  after  pardon  or  termination  of  sentence. 

Extreme  cruelty  by  infliction  of  grievous  bodily  injury  or 
grievous  mental  suffering. 

Wilful  desertion  one  year.  Persistent  refusal  to  have  mari- 
tal intercourse  is  desertion. 

Habitual  intemperance  one  year. 

Wilful  neglect  one  year.^ 

7  Sand.  &  HiU  Dig.,  (1894),  §  2510. 

8  Sand.  &  HiU  Dig.,  (1894),  §§  2514,  2517. 

9  Sand.  &  Hill  Dig.,  (1894),  §  2518. 
10  Sand.  &  HiU  Dig.,  (1894),  §  1481. 

1  Deering's  Codes  (Civil,  1903),  §§  92-105,  107,  124. 

[238] 


SYNOPSIS   OF   THE    DIVORCE    STATUTES. 

Grounds  for  annulment  of  marriage. 

Former  husband  or  wife  living. 

Marriage  under  age  of  consent. — See  Nonage,  infra. 

Force.  Action  must  be  begun  wdthin  four  years  after  mar- 
riage. 

Fraud.  Action  must  be  commenced  within  four  years  after 
marriage,  but  if  the  parties  have  cohabited  after  the  fraud  was 
discovered,  it  is  a  bar. 

Incurable  physical  incapacity.  Action  must  be  begun  within 
four  years  after  marriage. 

Insanity,  unless  the  marriage  has  been  ratified  by  cohabita- 
tion after  recovery.^ 

Grounds  for  partial  divorce. 

In  an  action  for  divorce  though  the  divorce  is  denied  the 
court  may  decree  support  and  maintenance  of   the  wife  and 
children.^ 
Nonage. 

Male  18.  Female  15.  But  the  marriage  may  be  ratified 
by  cohabitation  after  arriving  at  lawful  age,  and  such  ratifi- 
cation is  an  absolute  bar  to  annulment  for  this  cause. 

Action  must  be  begun  within  four  years  after  reaching  age 
of  consent  or  by  parent  or  guardian  before  party  has  reached 
that  age.^ 

Residence. 

One  year  in  the  state  and  three  months  in  the  county.^ 

J\irisdiction. 
Superior  court.® 

Service. 

Personal  or  by  publication  once  a  week  as  court  may  order, 
but  not  less  than  two  months.'^ 

2  Deering's  Codes  (Civil,  1903),  §§  82,  83. 
sDeering's  Codes  (Civil,  1903),  §  136. 

4  Deering's  Codes  (Civil,  1903),  §§  56,  82,  83. 

5  Deering's  Codes  (Civil,  1903),  §  128. 

6  Deering's  Codes  (Civil  Procedure,  1903),  §  76. 

7  Deering's  Codes  (Civil  Procedure,  1903),  §§  411-413. 

[239] 


THE    LAW   OF   MARRIAGE    AND    DIVORCE. 
Evidence. 

Corroborative  proof  is  always  required.*  A  confession  of 
adultery  is  not  sufficient.^ 

Alimony. 
Allowed.i« 

Bemarriage. 

Final  judgment  not  entered  until  after  one  year,  when  court 
may  permit  remarriage. ^^ 

COLORADO. 

Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony. 

Extreme  cruelty  or  acts  causing  mental  suffering. 

One  year's  desertion  without  reasonable  cause. 

Habitual  drunkenness  one  year. 

Former  husband  or  wife  living. 

Impotency  at  time  of  marriage  or  becoming  impotent  after 
marriage  in  consequence  of  criminal  or  immoral  conduct. 

Neglect  of  husband,  if  in  good  health,  to  provide  suitable 
support  and  maintenance  for  one  year.^ 

Consanguinity  and  miscegenation. 
These  marriages  are  void  without  legal  process.^ 

Residence. 

The  plaintiff  must  have  been  a  bona  fide  resident  of  the  state 
for  one  year,  except  where  act  is  committed  in  state  or  one  of 
the  parties  resided  in  state  at  the  time.  Residence  must  be 
proved  by  at  least  one  other  than  plaintiff.^ 

8  Deering's  Codes  (Civil,  1903),  §  130. 

9Deering's  Codes  (Civil  Procedure,  1903),  §2079. 
10  Deering's  Codes  (Civil,  1903),  §§  136-143. 
"  Deering's  Codes  (Civil,  1903),  §  132. 

1  Mills's  Anno.  Stats.,  Supp.  (190.5),  §  1562. 

zMUls's  Anno.  Stats.  (1891),  §§  1320,  2989. 

3  Mills's  Anno.  Stats.,  Supp.  (1905),  §  1564. 
[  240  ] 


SYNOPSIS   OF   THE   DIVORCE    STATUTES. 
Jurisdiction. 

District  court  and  county  court  when  alimony  asked  for  does 
not  exceed  two  thousand  dollars,'* 

Service. 

Personal  service  or  by  publication.  If  by  publication  defend- 
ant has  fifty  days  after  the  four  week's  pubUcation  to  answer 
and  fifty  days  after  personal  service  out  of  the  state.^ 

Trial. 

No  default  vnW  be  accepted  by  the  court  if  the  defendant 
fails  to  appear.  The  court  appoints  an  attorney  to  defend. 
Every  case  is  tried  by  a  jury.^ 

Alimony. 

Allowed.^ 

Remarriage. 

Permitted,  but  not  until  one  year  after  decree.* 

CONNECTICUT. 

Ghrounds  for  absolute  divorce. 

Adultery. 

Sentence  to  imprisonment  for  Ufe  or  any  infamous  crime 
invohdng  a  violation  of  conjugal  duty  and  punishable  by  im- 
prisonment in  the  state's  prison. 

Intolerable  cruelty. 

Wilful  desertion  for  three  years  \\ith  total  neglect  of  duty. 

Seven  years'  absence  unheard  from. 

Habitual  intemperance. 


Fraudulent  contract, 


4  Mills's  Anno.  Stats.,  Supp.    (190.5),  §  1563. 

5  Mills's  Anno.   Stats.,  Supp.  (1905),  §  §  1563-15636;  Mills's  Anno.  Code 
(1905),  §41. 

«  Mills's  Anno.  Stats.,  Supp.  (1905),  §  1566. 
7MiUs's  Anno.  Stats.,  Supp.  (1905),  §  1567. 
8  Mills's  Anno.  Stats.,  Supp.  (1905),  §  1567a. 
iGen.  Stats.  (1902),  §4551. 

16  [  241  ] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 
Grounds  for  partial  divorce. 

No  provision  made  by  statute  for  separate  maintenance. 
But  see  Gen.  Stats.  (1902),  §  4550. 

Nonage. 

Male  21.    Female  21.^ 

Residence. 

Three  years'  residence  in  the  state  is  required  unless  cause 
has  arisen  subsequently  to  removal  into  the  state.^ 

Jurisdiction. 

The  superior  court  has  exclusive  jurisdiction.^ 

Service. 

Is  made  personally  or  in  such  manner  as  the  court  may  deem 

reasonable.^ 

Evidence. 

If  no  defence  is  made  the  case  will  not  be  heard  until  ninety 
days  after  the  return  day  of  the  writ.^ 

Alimony. 

Is  allowed  and  the  court  may  assign  to  the  wife  a  portion  of 
her  husband's  estate,  not  to  exceed  one-third.^ 

Care  and  custody  of  children. 

The  court  may  make  such  decree  concerning  the  care  and 
custody  of  the  children  as  is  proper.* 

Maiden  name. 

The  court  in  its  discretion  may  allow  the  wife  to  resume  for- 
mer or  maiden  name.^ 

2  See  Gen.  Stats.  (1902),  §  4535. 

3  Gen.  Stats.  (1902),  §  4555. 

4  Gen.  Stats.  (1902),  §4551. 

5  Gen.  Stats.  (1902),  §§  4552,  4553. 
eGen.  Stats.  1902),  §4554. 

7  Gen.  Stats.  (1902),  §4556. 

8  Gen.  Stats.  (1902),  §  4558. 

9  Gen.  Stats.  (1902),  §  4556. 

[242] 


SYNOPSIS   OF   THE    DIVORCE   STATUTES. 


Remarriage. 

Permitted.^" 


DELAWARE. 

Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony  either  in  or  out  of  the  state  after  mar- 
riage, of  a  crime  by  the  laws  of  the  state  deemed  a  felony, 
whether  such  crime  shall  be  perpetrated  before  or  after  such 
marriage. 

Extreme  cruelty. 

Desertion  for  three  years. 

Habitual  drunkenness. 

Fraud. 

Impotency  of  either  party  at  time  of  marriage. 

Wilful  neglect  for  three  years. ^ 

Grounds  for  annulment  of  marriage. 

Consanguinity  and  affinity;  insanity;  bigamy;  miscegena- 
tion.^ 

Grounds  for  partial  divorce. 

An  absolute  divorce,  or  a  divorce  from  bed  and  board,  at  the 
discretion  of  the  court  may  be  decreed  for  the  procurement  of 
the  marriage  by  fraud,  for  wilful  neglect  on  the  part  of  the  hus- 
band for  three  years  to  provide  for  his  wife  the  necessities  of 
life  suitable  for  her  condition,  or  for  want  of  age. 


3 


Nonage. 

Male  18.  Female  16.  Such  marriages  may  be  ratified  by 
cohabitation  after  the  parties  have  arrived  at  legal  age,  and 
such  ratification  is  an  absolute  defence  to  divorce.^ 

10  Gen.  Stats.  (1902),  §  4552. 

1  Rev.  Code  (1893),  pp.  595,  596. 

2  Rev.  Code  (1893),  p.  596. 

3  Rev.  Code  (1893),  p.  .596. 
*  Rev.  Code  (1893),  p.  596. 

[243] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

Residence. 

The  residence  must  be  actual  and  bona  fide  at  the  time  of 
bringing  the  libel. 

Jurisdiction. 

Superior  court.® 

Service. 

Personal  service  or  by  publication.  If  by  pubUcation  the 
court  of  chancery  orders  the  sheriff  to  pubhsh  for  one  month. ^ 

Evidence. 

Confessions  are  not  admissible  unless  corroborated.'^ 
No  divorce  is  granted  where  the  cause  arose  in  another  state 
and  the  petitioner  was  a  non-resident  at  the  time,  unless  for 
such  causes  as  are  recognized  under  the  laws  of  such  other 
state.^ 

No  decree  obtained  in  another  state  by  an  inhabitant  of  Del- 
aware for  a  cause  not  good  in  Delaware  will  be  recognized.'' 

Alimony. 

Allowed.!" 

Maiden  name. 

The  court  in  its  discretion  may  change  the  name  of  the  wife, 
a  party  in  a  divorce  suit,  or  the  name  or  names  of  any  or  all 
issue  born  during  the  continuance  of  the  marriage  sought  to  be 
dissolved.!! 

Remarriage. 

Is  allowed,  but  a  party  found  guilty  of  adultery  shall  not 
marry  a  co-respondent. ^^  Decree  of  superior  court  granting 
divorce  is  open  to  appeal  for  one  year.^^ 

5  Rev.  Code  (1893),  pp.  595,  596. 
»  Rev.  Code  (1893),  596. 

7  Rev.  Code  (1893),  p.  597. 

8  Rev.  Code  (1893),  p.  598. 

9  Rev.  Code  (1893),  p.  598. 

10  Rev.  Code  (1893),  p.  597. 

11  Laws  of  1899,  p.  566. 

12  Rev.  Code  (1893),  p.  598. 

13  Laws  of  1899,  p.  567. 

[244] 


SYNOPSIS   OF   THE   DIVORCE   STATUTES. 

DISTRICT  OF  COLUMBIA. 
Grounds  for  absolute  divorce. 

Adultery.  Co-respondent  must  be  made  a  party  defendant 
and  served  with  process.^ 

Grounds  for  annulment  of  marriage. 

Marriage  contracts  may  be  declared  void:  where  either  party 
had  former  husband  or  wife  living  at  the  time  of  the  marriage, 
unless  the  former  marriage  had  been  cUssolved;  where  the  mar- 
riage was  contracted  during  the  lunacy  of  either  party,  unless 
there  has  been  voluntary  cohabitation  after  lunacy;  where 
the  marriage  was  produced  by  fraud  or  coercion;  where  either 
party  was  matrimonially  incapacitated  and  has  continued  so 
ever  since;  or  where  either  party  had  not  arrived  at  age  of 
legal  consent  to  contract  marriage,  unless  there  has  been  a  vol- 
untary cohabitation  after  becoming  of  legal  age,  but  in  such 
cases  only  as  to  party  not  capable  of  consenting.^ 

Grounds  for  partial  divorce. 

Drunkenness;  cruelty;  desertion.^ 

Consanguinity, 
Marriages  are  void  without  legal  process.^ 

Nonage. 

■     Male  21.     Female  18.     But  marriages  under  these  ages  may 
take  place  with  the  consent  of  the  parents  or  guardians.^ 

Residence. 

Apphcant  must  have  been  bona  fide  resident  of  district  for 
three  years  before  apphcation  is  made.^ 

iCode  (1906),  §§966,  983. 

2  Code  (1906),  §966. 

3  Code  (1906),  §966. 

4  Code  (1906),  §  1283. 

5  Code  (1906),  §  1292. 

6  Code  (1906),  §971. 

[2451 


THE   LAW   OF   MARRIAGE    AND   DIVORCE. 

Jurisdiction. 
Supreme  court.'' 

Service. 

Summons  is  issued  for  personal  service  and  if  returned  not 
found,  upon  affidavit  that  the  defendant  is  a  non-resident  or 
has  been  absent  from  the  district  for  six  months,  the  court  may 
order  publication  three  weeks  before  the  term.* 

Evidence. 

No  decree  can  be  rendered  on  default;  admissions  of  answer 
must  be  proved  by  other  evidence.^ 

Alimony. 

AUmony  temporary  and  permanent  may  be  granted,  and  the 
court  may  retain  right  of  dower. ^° 

Remarriage. 
The  innocent  party  only  can  remarry." 

FLORIDA. 

Grounds  for  absolute  divorce. 

Adultery. 
Consanguinity. 
Extreme  cruelty. 

Habitual  indulgence  of  violent  and  ungovernable  temper. 
Wilful,  obstinate  and  continued  desertion  for  the  period  of 
one  year. 
Habitual  intemperance. 
Impotency. 

Divorce  obtained  in  another  state  or  country. 
Another  spouse  living  at  time  of  marriage.^ 

7  Code  (1906),  §  963. 

8  Code  (1906),  §§  105,  108. 

9  Code  (1906),  §964. 

10  Code  (1906),  §§975,976. 

11  Code  (1906),  §966. 

1  Rev.  Stats.  (1892),  §  1480. 

[246] 


SYNOPSIS   OF  THE   DIVORCE   STATUTES. 

Incurable  insanity  for  four  years,  an  inmate  of  an  asylum 
adjudged  insane,  and  a  committee  appointed  to  investigate.^ 

Grounds  for  partial  divorce. 

The  statutes  require  all  divorces  to  be  a  vinculo,  but  a  wife 
may  bring  action  for  alimony  on  the  ground  of  desertion  for 
one  year,  or  for  adultery,  cruel  and  inhuman  treatment,  or  any 
other  cause  for  divorce.  If  the  husband  is  able  to  maintain 
the  wife  and  children  and  refuses,  the  wife  may  bring  suit  in 
chancery  for  maintenance.^ 

Miscegenation. 
Marriages  are  void  without  legal  process.^ 

Former  husband  or  wife  living. 

Marriages  under  these  circumstances  are  absolutely  void 
and  the  offspring,  if  any,  are  illegitimate.^ 

Nonage. 

Male  21.  Female  21.  Under  these  ages  consent  of  parent 
or  guardian  is  necessary  for  the  granting  of  a  hcense  unless  the 
party  has  been  previously  married.^ 

Residence. 

The  complainant  must  have  resided  in  the  state  two  years. 
But  where  the  defendant  has  been  guilty  of  adultery  in  the 
state,  any  citizen  of  the  state  may  obtain  a  divorce  at  any  time, 
and  the  two  years'  residence  shall  not  be  required  of  complain- 
ant.' 

Jurisdiction. 

Circuit  court  in  chancery.* 

2  Laws  of  1901,  p.  118. 

i  Rev  Stats.  (1892),  §  1485-148 

4  Rev.  Stats.  (1892),  §  2063. 

5  Rev.  Stats.  (1892),  §  1481. 

6  Rev.  Stats.  (1892),  §  2055. 

7  Laws  of  1899,  p.  117. 

8  Rev.  Stats.  (1902),  §  1477. 

[247] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

Service. 

Personal,  or,  in  case  of  non-resident  defendant,  by  publica- 
tion, four  weeks  for  other  state  or  eight  weeks  for  other  coun- 
try.8 

Alimony. 

Allowed.^" 

Care  and  custody  of  children. 
Court  may  make  order." 

Remarriage. 

Permitted.^^ 


GEORGIA. 

Grounds  for  absolute  divorce. 

Intermarriage  by  persons  within  the  prohibited  degrees  of 
relationship. 

Mental  incapacity  at  time  of  marriage. 

Impotency  at  time  of  marriage. 

Force,  menace,  duress,  or  fraud  in  obtaining  marriage. 

Pregnancy  of  wife  at  time  of  marriage  unknown  to  husband. 

Adultery. 

Wilful  and  continued  desertion  for  three  years. 

Conviction  for  an  offence  involving  moral  turpitude  where 
penalty  is  two  years  or  more  in  penitentiary.^ 

Discretionary  Grounds. 

In  cases  of  cruel  and  abusive  treatment  or  habitual  intoxi- 
cation, the  jury  may  grant  either  an  absolute  or  partial  divorce.^ 

9  Rev.  Stats.  (1902),  §§  1412,  1413. 

10  Rev.  Stats.  (1902),  §§  1483,  1484. 

11  Rev.  Stats    (1902),  §  1489. 

12  Laws  of  1901,  p.  110. 
12  Code  (1895),  §2426. 
2  2  Code  (1895),  §  2427. 

[248] 


SYNOPSIS   OF  THE    DIVORCE   STATUTES. 

Grounds  for  partial  divorce. 

Divorces  from  bed  and  board  may  be  granted  on  any  grounds 
which  were  held  sufficient  in  the  Enghsh  courts  prior  to  May  4, 
17843. 

Miscegenation  ;  former  husband  or  wife  living. 

Marriage  under  these  circumstances  is  absolutely  void  with- 
out legal  process. 


4 


Nonage. 

Male  17.  Female  14.  But  these  marriages  may  be  ratified 
by  cohabitation  after  arriving  at  lawful  age  and  such  cohab- 
itation is  an  absolute  bar  to  divorce  proceedings. 


5 


Residence. 

Plaintiff  must  have  had  an  actual  residence  in  the  state  for 
twelve  months  before  commencing  proceedings.^ 

Jurisdiction. 
Superior  court.'' 

Evidence. 

Concurrent  verdicts  of  two  juries  at  different  terms  of  court 
are  necessary  before  a  decree  for  absolute  divorce  wiU  be  en- 
tered.* 

Where  the  defendant  is  a  non-resident  suit  may  be  brought 
where  the  plaintiff  resides  ^  and  the  defendant  served  by  pub- 
lication.^" 

No  judgment  entered  by  default;  but  the  allegations  in  a 
petition  must  be  estabhshed  by  evidence. ^^ 

3  2  Code  (1895),  §  2428. 

4  2  Code  (1895),  §  2422;  3  Code  (1895),  §  377. 

5  2  Code  (1895),  §§  2412,  2416. 

6  2  Code  (1895),  §2431. 

7  2  Code  (1895),  §2425. 

8  2  Code  (1895),  §  2425. 
»  2  Code  (1895),  §5869. 

10  2  Code  (1895),  §§  2432,  4978. 

11  2  Code  (1895),  §  2440. 

[249] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE. 

In  ex  parte  proceedings  it  is  the  duty  of  the  court  to  see  that 
the  grounds  are  legal  and  are  substantiated  by  proof  or  to  ap- 
point the  sohcitor  general  or  some  other  attorney  of  the  court 
to  discharge  that  duty  for  him.^^ 

Alimony. 

The  jury  rendering  final  verdict  makes  provision  for  the  cU- 
vision  of  property. ^^ 

Temporary  aUmony  may  be  allowed  pending  suit,  or  before 
suit  is  brought,  where  the  parties  are  Uving  bona  fide  in  a  state 
of  separation. ^^ 

Permanent  alimony  is  granted  in  all  cases  of  absolute  di- 
vorce, or  in  cases  of  voluntary  separation,  and  where  the  wife, 
against  her  will,  is  either  abondoned  or  driven  away  from  home 
by  husband. ^^ 

After  a  separation,  no  transfer  by  the  husband  of  any  part 
of  the  property,  except  for  a  bona  fide  payment  of  a  preexist- 
ing debt  or  debts,  shall  pass  the  title  of  property  so  as  to  avoid 
the  vesting  thereof  according  to  the  final  verdict  of  the  jury 
in   the   cause. ^^ 

The  verdict  of  the  jury  specifies  the  kind  of  divorce  granted, 
and  the  disposition  to  be  made  of  the  property  scheduled. ^^ 

A  schedule  of  the  property  belonging  to  the  parties  is  at- 
tached to  the  petition  for  divorce.^* 

Children. 

The  innocent  party  is  entitled  to  the  care  and  custody  of  the 
children.^^ 

12  2  Code   (1895),    §2455. 

13  2  Code   (1895),    §2437. 

14  2  Code  (1895),   §§2457,  2467. 

15  2  Code  (1895),  §  2464. 
18  2  Code   (1895),    §2436. 

17  2  Code   (1895),   §2437. 

18  2  Code   (1895),    §2435. 

19  2  Code   (1895),   §  2452. 

[  250  ] 


SYNOPSIS   OF   THE    DIVORCE   STATUTES. 

Remarriage. 

The  jury  shall  determine  the  rights  and  disabilities  of  the 
parties.  These  disabilities  may  subsequently  be  removed  by 
legal  proceedings.^" 

Absence  of  one  party  to  a  marriage  for  five  years  without  in- 
formation of  the  fate  of  absentee  excuses  marriage  by  the 
other.^^ 

HAWAII. 
Grounds  for  absolute  divorce. 

Adultery. 

Wilful  and  utter  desertion  for  the  term  of  three  years. 

Sentence  to  imprisonment  for  Hfe,  or  seven  years  or  more. 
No  pardon  granted  afterwards  shall  restore  the  parties  to  their 
conjugal  rights. 

When  it  is  shown  to  the  satisfaction  of  the  judge  that  either 
party  has  contracted  the  disease  known  as  Chinese  leprosy,  and 
is  incapable  of  cure. 

Extreme  cruelty. 

Habitual  intemperance. 

When  the  husband,  being  of  sufficient  ability  to  provide  suit- 
able maintenance  for  his  wife,  neglects  or  refuses  to  do  so.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity  nearer  than  the  fourth  degree. 

Nonage,  but  not  if  the  parties  had  freely  cohabited  as  man 
and  wife  after  they  attained  legal  age. 

Former  husband  or  wife  Uving. 

Lunatic  or  idiot. 

Impotent  or  physically  incapable  of  entering  into  the  mar- 
riage state.  But  no  annulment  will  be  decreed  solely  on  con- 
fession.2 

20  2  Code   (1895),    §§2445-2450. 

21  3  Code  (1895),  §378. 
iRev.  Laws  (1905),  §  2228. 

2  Rev.    Laws    (1905),    §§2218-2226. 

[251] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

Grounds  for  partial  divorce. 

Extreme  cruelty;  habitual  drunkenness;  refusal  or  neglect 
of  husband  to  provide  his  wife  with  the  necessaries  of  life;  if 
the  party  applying  for  a  divorce  does  not  insist  upon  a  decree 
from  the  bonds  of  matrimony,  a  divorce  only  from  bed  and 
board  is  granted.^ 

Nonage. 

Male  17.     Female  14.^ 

Residence. 

Two  years'  residence  required.^ 

Jurisdiction. 

The  circuit  judge  of  the  circuit  in  which  the  parties  last  lived 
as  husband  and  wife.  If  the  parties  have  removed  from  said 
circuit,  then  the  circuit  judge  of  the  circuit  where  the  peti- 
tioner lives.^ 

Libel. 

The  hbel  must  be  signed  by  the  hbellant  and  sworn  to.^ 

Service. 

Personal  service  must  be  had  if  the  respondent  is  within  the 
territory.  But  after  reasonable  search  and  due  inquiry  for  six 
months  after  suit  is  brought,  if  the  respondent  cannot  be  found, 
the  judge  may  order  service  by  pubUcation.^ 

Evidence. 

Admissions  of  the  respondent  are  not  competent  evidence 
except  to  prove  the  original  marriage.** 

Alimony. 

Allowed.  i« 

3  Rev.  Laws  (1905),  §  2228. 

4  Rev.  Laws  (1905),  §2207. 

5  Rev.  Laws  (1905),  §  2229. 
8  Rev.  Laws  (1905),  §  2229. 

7  Rev.  Laws  (1905),  §  2230. 

8  Rev.  Laws  (1905),  §  2231. 
8  Rev.  Laws  (1905),  §  2232. 

10  Rev.  Laws  (1905),  §§  2236,  2237. 
[  252  ] 


SYNOPSIS   OF   THE   DIVORCE   STATUTES. 

Remarriage. 

Permitted  upon  presenting  certified  copy  of  decree  of  divorce 
which  must  be  presented  to  the  agent  issuing  the  license  to 
marry," 

IDAHO. 

Grounds  for  absolute  divorce. 

Adultery.^  Action  must  be  commenced  within  two  years  of 
discovery  by  the  injured  party ,^ 

Extreme  cruelty,^ 

Wilful  desertion  ^  for  one  year.^ 

Wilful  neglect  ^  for  one  year,^ 

Habitual  intemperance  ^  for  one  year,^ 

Conviction  of  felony.^  Action  must  be  commenced  within 
one  year  of  time  of  termination  of  sentence  or  pardon.^ 

Permanent  insanity.  But  no  divorce  shall  be  granted  on 
the  ground  of  insanity  unless  such  insane  person  has  been  reg- 
ularly confined  in  an  insane  asylum  for  at  least  six  years  next 
preceding  the  commencement  of  the  action  for  cUvorce.  No 
action  shall  be  maintained  upon  this  ground  unless  the  plain- 
tiff shall  have  been  an  actual  resident  of  the  state  for  at 
least  one  year  next  preceding  the  commencement  of  the 
action,^ 

Grounds  for  annulment  of  marriage. 

Persons  when  married  not  of  the  age  of  legal  consent  and 
such  marriage  contracted  without  the  consent  of  his  or  her 
parents,  or  of  the  persons  having  charge  of  him  or  her,  unless 
after  attaining  the  age  of  consent  such  party  for  any  time 
freely  live  and  cohabit  with  the  other  as  husband  and  wife. 
Actions  for  this  cause  must  be  begun  within  four  years  after 

"  Rev.  Laws  (1905),  §  2211. 

1  Civil  Code  (1901),  §  2021. 

2  Civil  Code  (1901),  §  2033. 

3  Civil  Code  (1901),  §  2027. 

<  Session  Laws  of  1903,  p.  332, 

[253] 


THE    LAW    OF   MARRIAGE   AND   DIVORCE. 

arriving  at  the  age  of  consent,  or  by  the  parent  or  guardian  at 
any  time  before  arriving  at  lawful  age. 

Where  either  party  has  a  former  husband  or  wife  Hving  and 
the  marriage  with  such  former  husband  or  wife  then  in  force. 

Where  either  party  was  of  unsound  mind  at  time  of  mar- 
riage, unless  such  party  after  coming  to  reason,  freely  cohabits 
with  the  other  as  husband  and  wife. 

Where  the  consent  of  either  party  was  obtained  by  fraud  or 
force,  unless  such  party  afterward  with  full  knowledge  of  the 
facts,  freely  cohabits  with  the  other  as  husband  and  wife.  Ac- 
tions for  fraud  must  be  brought  within  four  years  from  date  of 
discovery. 

That  either  party  was  at  the  time  of  the  marriage  physically 
incapable  of  entering  into  the  marriage  state  and  that  such 
incapacity  continues  and  appears  to  be  incurable.^ 

Consanguinity ;  afS.nity  ;  and  miscegenation. 

Marriage  under  these  circumstances  is  absolutely  void  with- 
out legal  proceedings.® 

Nonage. 

Male  18.  Female  18.'^  But  these  marriages  may  be  ratified 
by  cohabitation  after  arriving  at  legal  age  and  such  ratification 
is  an  absolute  bar  to  divorce.* 

Kesidence. 

Six  months'  bona  fide  residence  required.^ 

Jurisdiction. 
District  court.  ^° 

eCivU  Code  (1901),  §§  2014,  2015. 
e Civil  Code  (1901),  §§  1993,  1994. 
7Ci\ilCode  (1901),    §  1990. 

8  Civil  Code  (1901),  §  2014. 

9  Civil  Code  (1901),  §  2034. 
10  Civil  Code  (1901),  §  2048. 

[254] 


SYNOPSIS    OF   THE    DIVORCE   STATUTES. 

Service. 

Personal  service  or  by  publication.  If  by  publication,  not 
less  than  one  month. ^^ 

Evidence. 

No  divorce  can  he  granted  upon  the  default  of  the  defendant 
nor  upon  the  uncorroborated  testimony  of  the  parties.  Proof, 
if  not  taken  before  the  court,  must  be  by  written  questions  and 
answers. ^^ 

The  trial  may  be  private. ^^ 

Alimony. 

Allowed.14 

Remarriage. 

Permitted  after  six  months  from  annulment  or  dissolution.^^ 
A  person  is  not  guilty  of  bigamy  whose  former  spouse  at  the 

time  of  the  marriage  has  been  absent  five  years,  is  not  known 

to  be  Uving  and  is  beheved  to  be  dead.^^ 

ILLINOIS. 

Grounds  for  absolute  divorce. 

Impotency. 

Former  husband  or  wife  Uving  at  time  of  marriage. 
Adultery. 

Desertion  for  two  years  without  reasonable  cause. 
Habitual  drunkenness  for  two  years. 

An  attempt  to  take  the  life  of  the  other  by  poison  or  cTther 
means  showing  mahce. 

Extreme  and  repeated  cruelty. 

Conviction  of  felony  or  other  infamous  crime. ^ 

"Code  of  Civil  Proc.  (1901),  §§  3195,  3196. 
i2Civa  Code  (1901),  §  2036. 
13  Code  of  Civil  Proc.  (1901),  §  3012. 
'4  Civil  Code  (1901),  §  2037. 
15  Session  Laws  of  1903,  p.  10. 
18  Session  Laws  of  1905,  p.  293. 
1  Kurd's  Rev.  Stats.  (1903),  c.  40,  §  1. 

[255] 


THPJ   LAW   OF   MARRIAGE   AND   DIVORCE. 

Grounds  for  partial  divorce. 

Separate  maintenance  may  be  decreed  to  the  wife  without 
divorce  when  she  is  living  apart  and  separate  from  her  husband 
without  her  fault.^ 

Nonage. 

Male  18.     Female  16.^ 

Residence. 

One  year  unless  the  offence  was  committed  in  the  state. ^ 

Jurisdiction. 

Circuit  court.     Proceedings  the  same  as  in  chancery  court. 
In  Cook  County,  the  superior  court  has  jurisdiction.^ 

Service. 

Personal  or  by  pubhcation.  If  by  pubhcation,  for  four  suc- 
cessive weeks  thirty  days  before  return  day.^ 

The  suit  must  be  prosecuted  in  the  county  of  complainant's 
residence,  but  the  defendant  may  be  served  in  any  county  in 
the  state.^ 

Evidence. 

In  cases  of  default  the  court  hears  the  cause  by  the  exami- 
nation of  witnesses  in  open  court. 

Confessions  of  defendant  not  admitted  unless  judge  or  jury 
is  satisfied  they  were  made  in  sincerity  and  without  fraud  or 
collusion.* 

Trial  by  jury. 

When  the  charge  is  denied  either  party  may  demand  a  jury 
trial.® 

2  Kurd's  Rev.  Stats.  (1903),  c.  68,  §  22. 

3  Laws  of  1905,  p.  317. 

4  Kurd's  Rev.  Stats.  (1903),  c.  40,  §  2. 

5  Kurd's  Rev.  Stats.  (1903),  c.  40,  §  4. 

6  Kurd's  Rev.  Stats.   (1903),  c.  22,   §11,  c.  100,   §9. 

7  Kurd's  Rev.  Stats.  (1903),  c.  40,  §  5. 

8  Kurd's  Rev.  Stats.  (1903),  c.  40,  §§8,  9. 

9  Kurd's  Rev.  Stats.  (1903),  c.  40,  §  7. 

[256] 


SYNOPSIS   OF  THE   DIVORCE   STATUTES. 

Alimony. 

The  court  may,  pending  suit  for  divorce,  compel  the  husband 
to  pay  the  wife's  legal  expenses,  as  well  as  aUmony,  and,  when 
a  divorce  is  decreed,  the  court  may  make  suitable  orders  touch- 
ing her  ahmony  and  the  maintenance,  care,  custody,  and  sup- 
port of  the  children,  and  may  alter  the  same  from  time  to  time. 

A  woman  who  shall  in  good  faith  intermarry  with  a  man 
whose  first  wife  is  still  Uving  may  be  awarded  alimony,  pro- 
vided this  is  not  inconsistent  with  the  rights  of  the  other  wife.^" 

Bemarriage. 

Not  permitted  until  after  one  year  from  decree  and  in  case 
of  adultery  until  after  two  years.  Violation  of  this  law  is 
punishable  with  a  penitentiary  sentence  of  from  one  to  three 
years,  and  the  marriage  is  declared  void.^^ 


INDIAN   TERRITORY. 

Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony  or  other  infamous  crime. 

Habitual  drunkenness  for  one  year. 

Cruel  and  barbarous  treatment  that  endangers  the  hfe  of  the 
other  or  such  indignities  to  the  person  of  the  other  as  shall 
render  his  or  her  concUtion  intolerable. 

Wilful  desertion  for  one  year  or  where  one  absents  himself  or 
herself  from  the  other  without  reasonable  cause  for  one  year. 

Where  either  party  was  at  the  time  of  the  marriage  and  still 
is  impotent. 

Former  husband  or  wife  U\dng  at  time  of  marriage. 

Where  either  party  subsequent  to  the  marriage  has  become 
permanently  or  incurably  insane.^ 

10  Kurd's  Rev.  Stats.   (1903),  c.  40,  §§15,  18-20. 

11  Laws  of  1905,  p.  194. 

1  Stats.   (1899),   §  1844. 

17  [  257  ] 


THE    LAW    OF    MARRIAGE    AND    DIVORCE. 

Grounds  for  annulment  of  marriage. 

Either  party  under  the  age  of  consent,  mentally  or  physi- 
cally incapable  or  has  consented  on  account  of  force  or  fraud.^ 

Consanguinity  and  miscegenation. 

Marriage  under  these  circumstances  is  void  without  legal 
proceedings.^ 

Nonage. 
Male  17.     Female  14.'» 

Residence. 

Must  be  a  resident  in  the  territory  for  one  year  next  preced- 
ing the  commencement  of  the  action.^ 

Jurisdiction. 

Circuit  court.* 

Service. 

Personal  service  or  service  by  pubUcation.  If  by  pubUca- 
tion  once  a  week  for  four  successive  weeks.^ 

Evidence. 

No  divorce  shall  be  granted  on  admissions. 

No  divorce  shall  be  granted  by  default. 

Either  party  may  testify,  but  their  testimony  must  be  cor- 
roborated.* 

The  plaintiff  must  prove  that  the  cause  of  divorce  occurred 
or  existed  in  the  territory,  or,  if  out  of  the  territory,  that  it 
was  a  legal  cause  of  divorce  in  the  state  or  territory  where  it 
occurred  or  existed,  or  that  the  plaintiff's  residence  was  tljen 
in  the  territory. 

The  plaintiff  must  prove  that  the  cause  of  divorce  existed  or 

2  Stats.  (1899),  §2994. 

3  Stats.  (1899),  §§  2992,  2993. 

4  Stats.  (1899),  §2991. 

5  Stats.  (1899),  §  1850. 

6  Stats.  (1899),  §  1844. 

7  Stats.  (1899),  §§3180,  3194,  3195. 

8  Stats.  (1899),  §  1849. 

[258] 


SYNOPSIS    OF   THE    DIVORCE    STATUTES. 

occurred  wdthin  five  years  next  prior  to  the  commencement  of 
the  suit.^ 

Alimony. 

The  court  may  allow  the  wife  maintenance  pending  the  ac- 
tion, and  a  reasonable  fee  for  her  attorney,  and  may  enforce 
the  payment  of  the  same  by  order. ^'^ 

On  final  decree,  the  court  shall  make  such  orders  touching 
the  ahmony  of  the  wife  and  the  care  and  custody  of  the 
children,  if  there  be  any,  as  the  circumstances  of  the  parties 
and  the  nature  of  the  case  seem  just  and  reasonable." 


Remarriage. 

Is  not  forbidden. 


INDIANA. 

Grounds  for  absolute  divorce. 

Adultery,  except  when  the  offence  has  been  committed  with 
the  connivance  or  consent  of  the  party  seeking  the  divorce,  or 
when  the  party  seeking  the  divorce  has  voluntarily  cohabited 
with  the  other  with  knowledge  of  the  fact,  or  has  failed  to  file 
a  petition  for  two  years  after  discovery  of  same,  or  when  the 
party  seeking  the  divorce  has  been  guilty  of  adultery  under  such 
circumstances  as  would  have  entitled  the  opposite  party,  if 
innocent,  to  a  decree.^ 

Impotency  existing  at  the  time  of  marriage. 

Abandonment  for  two  years. 

Cruel  and  inhuman  treatment. 

Habitual  drunkenness. 

Pregnancy  by  other  than  husband. 

9  Stats.  (1899),  §  1850. 

10  Stats.  (1899),  §  1851. 

11  Stats.  (1899),  §§  1853-1855. 

1  Bums'  Anno.  Stats.  (1901),  §§  1044,  1045. 

[259] 


THE    LAW    OF    MARRIAGE    AND    DIVORCE. 

Husband's  failure  to  make  suitable  provision  for  liis  family 
for  a  period  of  two  years. 

The  conviction  subsequent  to  the  marriage  in  any  country 
of  either  party  of  an  infamous  crime.^     [An  infamous  crime  is 
one  punishable  by  imprisonment  in  the  penitentiary.] 
Grounds  for  annulment  of  marriage. 

Insanity  or  want  of  age  at  time  of  contract.^ 

Grounds  for  separation  for  limited  time. 

Adultery;  desertion  or  neglect  to  provide  for  wife  for  six 
months;  habitual  cruelty  or  intolerable  strife;  habitual  drunk- 
enness or  confirmed  habitual  use  of  drug;  gross  and  wanton 
neglect  of  conjugal  duty  for  six  months.^ 

Consanguinity  ;  affinity  ;  and  miscegenation. 

Marriages  between  parties  nearer  of  kin  than  second  cousins 
are  prohibited. 

Marriages  of  persons  of  different  color  are  prohibited,  or 
where  either  party  thereto  has  a  former  husband  or  wife  living, 
if  the  marriage  was  solemnized  within  the  state. ^ 

The  above  marriages  are  void  without  legal  proceedings. 

Nonage. 
Male  18.     Female  16.» 

Residence. 

Plaintiff  must  establish  residence  in  the  state  for  two  years 
immediately  preceding  the  fiUng  of  the  petition,  and  of  six 
months  in  the  county,  by  evidence  of  at  least  two  witnesses 
who  are  resident  freeholders  and  householders  of  the  state. 

Plaintiff  must  file  with  the  petition  an  affidavit,  sworn  to  by 
himself,  stating  the  length  of  time  he  has  been  a  resident  of  the 
state,  and  stating  particularly  the  place,  town,  city,  or  township 

2  Bums'  Anno.  Stats.  (1901),  §  1044. 

3  Bums'  Anno.  Stats.  (1901),  §  1037. 

4  Acts  of  1903,  p.  114. 

5  Bums'  Anno.  Stats.  (1901),  §  1036. 

6  Bums'  Anno.  Stats.  (1901),  §  7289. 

[260] 


SYNOPSIS    OF   THE    DIVORCE    STATUTES, 

in  which  he  has  resided  for  the  last  two  years,  and  stating  also 
his  occupation  wliich  shall  be  sworn  to  before  the  clerk  of  the 
court  in  which  the  petition  is  filedJ 

Jurisdiction. 

Superior  and  circuit  courts.^ 

Service. 

Personal  or  by  pubhcation.  If  by  pubHcation  once  a  week 
for  three  successive  weeks  thirty  days  before  trial. ^ 

Trial. 

Whenever  a  petition  for  divorce  remains  undefended,  it  shall 
be  the  duty  of  the  prosecuting  attorney  to  appear  and  resist 
and  the  plaintiff  shall  pay  therefor. ^^ 

Evidence. 
A  decree  will  not  be  granted  upon  default  without  proof." 

Interlocutory  orders. 

Interlocutory  orders  may  issue  pending  a  petition  for  di- 
vorce, in  reference  to  the  disposition  of  the  persons,  property, 
and  children  of  the  parties,  and  enforced  by  attachment.^^ 

Trial. 

If  no  appearance  by  defendant,  prosecuting  attorney  to  be 
notified  and  to  defend,^^ 

Evidence. 

A  tUvorce  granted  in  another  state  by  a  court  having  juris- 
diction thereof  shall  have  full  effect. 

For  the  purpose  of  modifying  orders  in  reference  to  the  cus- 
tody of  the  children  and  in  reference  to  weekly  or  monthly 

7  Bums'  Anno.  Stats.  (1901),  §  1043. 

8  Bums'  Anno.  Stats.  (1901),  §  1043. 

9  Bums'  Anno.  Stats.  (1901),  §  1048. 
10  Bums'  Anno.  Stats.  (1901),  §  1050. 
"Bums'  Anno.  Stats.  (1901),   §  1051. 

12  Bums'  Anno.  Stats.  (1901),  §  1054. 

13  Acts  of  1903,  pp.  393,  394. 

[  261  ] 


THE   LAW   OF    MARRIAGE    AND    DIVORCE. 

allowance  for  their  support,  or  by  way  of  alimony,  the  original 
case  may  be  reopened  at  any  time. 

Alimony. 

Upon  decreeing  a  divorce  in  favor  of  the  wife  or  refusing  one 
to  the  husband,  the  court  may  require  the  husband  to  pay  all 
reasonable  expenses  of  the  wife  in  connection  with  the  prose- 
cution or  defence. 

Ahmony  may  be  awarded  within  the  discretion  of  the  court, 
and  made  payable  in  a  gross  smn  or  by  installments,  upon  giv- 
ing satisfactory  security.^"* 

IRexaarriage. 

Where  a  judgment  of  divorce  has  been  granted  by  default 
against  a  party  upon  notice  by  pubhcation,  such  defaulted 
party  may  appear  and  have  the  case  reopened  at  any  time  dur- 
ing the  two  years  next  succeeding  rendition  of  the  decree,  and 
during  that  period  it  shall  not  be  lawful  for  the  party  who  has 
been  granted  the  divorce  to  remarry. ^^ 

IOWA. 

Grounds  for  absolute  divorce. 

Adultery. 

Wilful  desertion  for  two  yiears. 

Conviction  of  felony  after  marriage. 

Habitual  drunkenness  after  marriage. 

Such  inhuman  cruelty  as  endangers  life. 

Pregnancy  of  the  wife  at  the  time  of  the  marriage  by  a  man 
other  than  the  husband,  unless  such  husband  have  an  illegiti- 
mate child  then  Uving  which  was  unknown  to  the  wife  at  the 
time  of  their  marriage.^ 

Grounds  for  annulment  of  marriage. 
Consanguinity  and  affinity;  impotency  at  time  of  marriage; 

"Bums'  Anno.  Stats.  (1901),  §§  1057,  1059. 
15  Burns'  Anno.  Stats.  (1901),  §  1042. 
iCode  (1897),  §§3174,  3175. 
[262] 


SYNOPSIS    OF   THE    DIVORCE    STATUTES. 

idiocy  or  insanity;  former  husband  or  wife  living,  provided 
that  the  parties  have  not  cohabited  after  former  husband  or 
wife  died.^ 

Nonage. 

Male  16.  Female  14,  provided  they  have  not  cohabited 
together  after  arriving  at  legal  age.  Actions  on  ground  of 
nonage  must  be  commenced  within  six  months  after  arriving 
at  legal  age.^ 

Residence. 

One  year's  residence  is  required,  except  where  the  defendant 
is  a  resident  of  the  state  and  served  by  personal  service.  The 
petition  must  show  that  the  plaintiff  has  been  for  the  last  year 
a  resident  of  the  state,  specifying  the  town  and  county  in  which 
he  has  so  resided."* 

Jurisdiction. 
District  court. ^ 

Service. 

Personal  or  by  pubUcation.  If  by  pubHcation,  once  a  week 
for  four  weeks.® 

Evidence. 
Testimony  of  the  plaintiff  must  be  corroborated. 
Trial  must  be  pubhc' 

Alimony. 

Ahmony  may  be  allowed  either  husband  or  wife  and  the 
court  may  order  one  party  to  pay  to  the  clerk  of  court  a  sum 
of  money  for  the  separate  support  of  the  adverse  party  and  the 

2  Code  (1897),  §3182. 

3  Code  (1897),  §  3140. 

4  Code  (1897),  §  3172. 

5  Code  (1897),  §3171. 

6  Code  (1897),  §§  3518,  3535. 

7  Code  (1897),  §  3173. 

[  263  ] 


THE   LAW    OF   MARRIAGE   AND   DIVORCE. 

children  to  enable  such  party  to  prosecute  or  defend  the  action, 
and  such  order  may  be  enforced  by  attachment.* 

Remarriage. 
Is  not  forbidden. 

KANSAS. 
Grounds  for  absolute  divorce. 

Adultery, 

Former  husband  or  wife  living  at  the  time  of  the  subsequent 
marriage. 

Abandonment  for  one  year. 

Impotency. 

Extreme  cruelty. 

Fraudulent  contract. 

Habitual  drunkennness. 

Gross  neglect  of  duty. 

Conviction  of  felony  and  imprisonment  in  penitentiary  there- 
for, subsequent  to  the  marriage. 

Pregnancy  by  other  than  husband  at  the  time  of  marriage.^ 

Grounds  for  annulment  of  marriage. 

Want  of  age  or  understancUng  at   time  of  marriage  unless 
ratified.^ 

Grounds  for  partial  divorce. 

Suit  for  ahmony  may  be  brought  for  the  same  causes  as  for 
an  absolute  divorce.^ 

Nonage. 

Male  17.     Female  15.     These  are    ages  below  which    the 
consent  of  the  probate  judge  is  required.^ 

8  Code  (1897),  §§3177,  3178. 

1  Dassler's  Gen.  Stats.   (1901),  §  5132. 

2  Dassler's  Gen.  Stats.   (1901),  §  5143. 

3  Dassler's  Gen.  Stats.   (1901),   §5144. 

4  Laws  of  1905,  p.  462. 

[  264  ] 


SYNOTSIS   OF  THP:   DIVORCE   STATUTES. 

Residence. 

Plaintiff  must  be  an  actual  resident  in  good  faith  of  the  state 
for  one  year,  and  a  resident  of  the  county  in  which  the  action 
is  brought  at  the  time  the  petition  is  filed.^ 

A  wife  who  resides  in  the  state  at  the  time  of  applying  for  a 
divorce  shall  be  deemed  to  be  a  resident  of  the  state,  although 
her  husband  resides  elsewhere.^ 

Jurisdiction. 
District  court/ 

Service. 

Personal  service  of  summons  or  service  by  publication  may 
be  made  on  defendant.* 

If  service  is  made  by  pubhcation,  it  must  be  made  for  three 
weeks,  returnable  not  less  than  forty-one  days  from  the  date 
of  the  first  pubhcation,^  and  copies  mailed  to  defendant  witliin 
three  days  after  pubhcation. 

Custody  of  children. 

The  court  may  make  provision  for  the  custody  of  the  children 
or  give  them  to  either  party. ^° 

Evidence. 

Petition  must  be  verified." 

Defendant  in  his  answer  may  deny  the  truth  of  the  petition 
and  set  up  his  cause  for  cUvorce.^^ 

Each  party  may  testify,  but  must  be  corroborated.^^ 


5  Dassler's  Gen. 

Stats. 

(1901), 

§  5133. 

8  Dassler's  Gen. 

Stats. 

(1901), 

§  5146. 

7  Dassler's  Gen. 

Stats. 

(1901), 

§136. 

8  Dassler's  Gen. 

Stats. 

(1901), 

§  5134. 

9  Dassler's  Gen. 

Stats. 

(1901), 

§  4508. 

10  Dassler's  Gen. 

Stats. 

(1901), 

§  5138. 

11  Dassler's  Gen. 

Stats. 

(1901), 

§  5134. 

12  Dassler's  Gen. 

Stats. 

(1901), 

§  5135. 

13  Laws  of  1903, 

p.  593. 

[265] 


THE    LAW   OF   MARRIAGE   AND    DIVORCE. 

Alimony, 

Alimony  pendente  lite  ^^  and  permanent  alimony  may  be 
allowed. ^^ 

Remarriage. 

Divorce  does  not  become  absolute  until  six  months  after  the 
decree  is  entered  on  court  records,  or  thirty  days  after,  in  case 
of  appeal.^® 

KENTUCKY. 
Grounds  for  absolute  divorce, 

Impotency  or  malformation  as  prevents  sexual  intercourse. 

Living  apart  without  any  cohabitation  for  five  consecutive 
years  next  before  the  appUcation. 

To  the  party  not  in  fault,  for  the  following  causes: 

Abandonment  for  one  year. 

Living  in  adultery  with  another  man  or  woman. 

Condemnation  for  felony  in  or  out  of  the  state. 

Concealment  from  the  other  party  of  any  loathsome  disease 
existing  at  the  time  of  marriage  or  contracting  such  afterward. 

Force,  duress,  or  fraud  in  obtaining  the  marriage. 

Uniting  with  any  rehgious  society  whose  creed  and  rules  re- 
quire a  renunciation  of  the  marriage  covenant  or  forbid  hus- 
band and  wife  from  cohabiting. 

To  the  ivije,  when  not  in  fault,  for  the  following  causes: 

Confirmed  habits  of  drunkenness  on  the  part  of  the  husband 
of  not  less  than  one  year's  duration,  accompanied  with  a  wast- 
ing of  his  estate,  and  without  any  suitable  provision  for  the 
maintenance  of  his  wife  or  children. 

Habitually  behaving  toward  the  wife  by  the  husband  for  not 
less  than  six  months  in  such  cruel  and  inhuman  manner  as  to 
indicate  a  settled  aversion  to  her,  or  to  destroy  permanently 
her  peace  or  happiness. 

14  Laws  of  1905,  p.  548. 

15  Dassler's  Gen.  Stats.   (1901),   §  5139. 
isDassler's  Gen.  Stats.   (1901),  §5140. 

[  266  ] 


SYNOPSIS    OF   THE   DIVORCE    STATUTES. 

Such  cruel  beating  or  injury,  or  attempt  to  injure  the  wife 
by  the  husband,  as  indicates  outrageous  temper  in  him,  or 
probable  danger  to  her  Ufe,  or  great  bodily  harm  from  her  re- 
maining with  him. 

To  the  husband: 

Where  the  wife  is  pregnant  by  another  man  without  the  hus- 
band's knowledge  at  the  time  of  the  marriage. 

When  not  in  like  fault,  habitual  drunkenness  on  the  part  of 
the  wife  of  not  less  than  one  year's  duration. 

Adultery  by  the  wdfe,  or  such  lewd,  lascivious  behavior  on 
her  part  as  proves  her  to  be  unchaste,  without  actual  proof  of 
adultery.^ 

Grounds  for  annulment  of  marriage. 

Marriage  procured  by  force  or  fraud  and  marriages  under  the 
age  of  consent  not  thereafter  ratified.^ 

Grounds  for  partial  divorce. 

Separations  may  be  granted  for  the  same  causes  as  absolute 
divorces  are  granted,  or  for  such  causes  as  the  court,  in  its  dis- 
cretion, may  determine.^ 

Nonage. 

Male  14.  Female  12.  Marriages  under  this  age  are  abso- 
lutely void  without  legal  proceedings.''  If  male  is  under  six- 
teen years  and  female  under  fourteen  years  the  marriage  may 
be  annulled,  if  without  consent  of  parent  or  guardian.^ 

Residence. 

One  year's  residence  required  unless  the  act  was  committed 
while  the  plaintiff  was  a  resident  of  the  state.* 

1  CarroU's  Stats.  (1903),  §2117. 

2CarroU's  Stats.  (1903),  §2100. 

3 Carroll's  Stats.  (1903),  §2121. 

*  CarroU's  Stats.  (1903),  §2097. 

5 Carroll's  Stats.  (1903),  §2100. 

6  CarroU's  Stats.  (1903),  §  2120. 

[267] 


THE    LAW   OF   MARRIAGE   AND    DIVORCE. 

Jurisdiction. 
Equity  court.'' 

Service. 

Personal  service  or  by  warning  order  sixty  days  before  term 
day.* 

Evidence. 

No  judgment  by  default  allowed. 

Two  witnesses  or  one  witness  and  strong  corroborating  cir- 
cumstances are  necessary  to  sustain  charge  of  adultery  or  lewd- 
ness, and  one  witness  only  for  other  grounds. 

The  good  character  and  credibility  of  the  witnesses  must  be 
certified  or  proved. 

The  county  attorney  must  defend.^ 

The  action  must  be  brought  in  the  county  of  the  wife's 
residence,  if  in  the  state,  otherwise  in  the  county  where  the 
husband  resides. 

Suit  must  be  commenced  within  five  years  of  act.^° 

No  jury  trial  alio  wed.  ^^ 

If  the  act  complained  of  was  committed  outside  the  state,  it 
must  be  a  good  cause  where  committed  as  well  as  in  the 
state.io 

Alimony. 

AUowed.^2 

Remarriage. 

Permitted;  but  a  person  can  have  but  one  divorce  except 
for  adultery  or  for  causes  for  which  a  divorce  may  be  granted 
to  both  husband  and  wife.^^ 

7  Carroll's  Stats.  (1903),  §2117. 

8  Carroll's  Civil  Code  of  Practice  (1895),  §§  48,  56. 

9  Carroll's  Stat.  (1903),  §  2119. 
10  Carroll's  Stat.  (1903),  §  2120. 
"Carroll's  Stat.  (1903),  §  2117. 

12  Carroll's  Stat.  (1903),  §§  2121-2126. 

13  Carroll's  Stat.  (1903),  §  2118. 

[268] 


SYNOPSIS    OF    THE    DIVORCE    STATL'TES. 

LOTIISIANA. 
Grounds  for  absolute  divorce. 

Adultery. 

Condemnation  to  ignominious  punishment. 

Where  there  has  been  judgment  of  separation  from  bed  and 
board  between  the  parties  and  one  year  has  elapsed  from  the 
finding  of  such  judgment  and  no  reconciliation  has  taken  place. 

Habitual  intemperance,  or  excessive  or  outrageous  cruelty 
such  as  to  render  condition  of  plaintiff  insupportable.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity;  force  or  fraud;  former  husband  or  wife  liv- 
ing at  time  of  subsequent  marriage;  want  of  free  consent.^ 

Grounds  for  partial  divorce. 

Separation  from  bed  and  board  may  be  claimed  for: 

Adultery. 

Condemnation  to  an  infamous  punishment,  habitual  in- 
temperance, or  excesses,  or  cruel  treatment  or  outrages,  if 
such  conduct  is  of  such  a  nature  as  to  render  Uving  together 
insupportable. 

Public  defamation. 

Abandonment. 

Attempt  on  the  life  of  the  other. 

When  one  of  the  married  persons  has  been  charged  with  an 
infamous  offence  and  has  actually  fled  from  justice,  and  the 
other  produces  proof  to  the  judge  before  whom  the  action  for 
separation  is  brought  that  the  person  accused  has  actually  been 
guilty  of  such  offence  and  has  fled  from  justice.^ 

Nonage. 

Male  14.    Female  12.^ 

1  Revised  Laws  (1904),  pp.  598,  599. 

2  Revised  Civil  Code  (1900),  Arts.  110-118. 

3  Revised  Civil  Code  (1900),  Art.  138. 
*  Revised  Civil  Code  (1900),  Art.  92. 

[269] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

Residence. 

If  the  marriage  was  solemnized  in  the  state,  action  may  be 
brought  by  the  wife  regardless  of  the  domicil  of  the  husband.^ 

Jurisdiction. 
District  court.* 

Service. 

Personal  service  or  by  leaving  summons  at  last  known  place 
of  residence,  or  upon  a  person  appointed  by  the  court  against 
whom,  contradictorily,  the  suit  is  prosecuted.^ 

Evidence. 

Where  the  defendant  is  not  present  in  court,  an  attorney  is 
appointed  by  the  court  to  represent  him  or  her.^ 

No  divorce  will  be  granted  for  any  cause  except  adultery 
and  conviction  of  infamous  crime  until  one  year  after  a  decree 
of  separation  has  been  entered.^ 

Alimony. 

Is  allowed  pendente  lite  and  after  divorce,  and,  if  the  wife  has 
obtained  the  divorce  and  she  has  not  sufficient  means  for  her 
maintenance,  the  court  may,  in  its  discretion,  allow  her  out  of 
her  husband's  property  aUmony  not  exceeding  one-third  of  his 
income,  which  is  revocable  by  the  court  when  it  becomes  un- 
necessary, or  she  has  contracted  a  second  marriage. ^° 

Remarriage. 

Is  allowed  except  with  paramour.^* 

Wife  may  not  remarry  until  ten  months  after  final  decree. ^^ 

5  Revised  CivU  Code  (1900),  Art.  142. 

6  Constitution,   Art.    133. 

7  Revised  Civil  Code  (1900),  Art.  141. 

8  Revised  Civil  Code  (1900),  Art.  141. 

9  Revised  Civil  Code  (1900).  Art.  139. 

10  Revised  Civil  Code  (1900),  Arts.  148,  160. 

11  Revised  Civil  Code  (1900),  Art.  161. 

12  Revised  Civil  Code  (1900),  Art.  137. 

[270] 


SYNOPSIS    OF   THE    DIVORCE    STATUTES. 

MAINE. 
Grounds  for  absolute  divorce. 

Adultery. 

Impotency. 

Extreme  cruelty. 

Utter  desertion  continued  for  three  successive  years  next 
prior  to  the  fihng  of  the  libel. 

Gross  and  confirmed  habits  of  intoxication  from  the  use  of 
intoxicating  liquors,  opium,  or  other  drugs. 

Cruel  and  abusive  treatment,  or,  on  the  libel  of  the  wife: 

Where  the  husband,  being  of  sufficient  abihty  or  being  able 
to  labor  and  provide  for  her,  grossly  or  wantonly  and  cruelly 
refuses  or  neglects  to  provide  suitable  maintenance  for  her. 

Provided  that  the  parties  were  married  in  the  state  or  co- 
habited therein  after  marriage.' 

Marriages  void  ■without  legal  process. 

Consanguinity  and  affinity;  former  husband  or  wife  living 
at  time  of  subsequent  marriage;  insanity;  idiocy. ^ 

Nonage. 

Male  21.  Female  18.  These  are  ages  imder  which  consent 
of  parent  or  guardian  is  required.^ 

Residence. 

One  year,  unless  plaintiff  resided  in  the  state  when  the  cause 
of  action  accrued  or  the  parties  were  married  in  the  state.'' 

Jurisdiction. 

Supreme  court.^ 

Service. 

Personally,  or  as  ordered  by  the  trial  judge.® 

1  Revised  Stats.  (1903),  p.  581,  §  2. 

2  Revised  Stats.  (1903),  p.  573,  §§  1-3,  p.  581,  §  1. 

3  Revised  Stats.  (1903),  p.  573,  §  5. 

4  Revised  Stats.  (1903),  p.  581,  §  2. 

5  Revised  Stats.  (1903),  p.  676,  §  2. 

8  Revised  Stats.  (1903),  p.  582,  §§   3,  4. 

[271] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

Evidence. 

Both  parties  may  testify/ 

Foreign  divorces  are  recognized,  but  a  decree  obtained  in 
another  state  for  causes  occurring  in  Maine  by  a  resident  of  the 
state,  who  left  the  state  for  the  purpose  of  obtaining  a  divorce, 
while  the  parties  Uved  there,  is  void.* 

Alimony. 

While  the  wife's  libel  is  pending,  the  court,  or  any  justice 
thereof  in  vacation,  may  order  the  husband  to  pay  to  the  clerk 
of  court,  for  the  benefit  of  the  wife,  sufficient  money  for  the 
defence  or  prosecution  thereof,  and  to  make  reasonable  pro- 
vision for  her  separate  support,^ 

The  court  may  grant  alimony  upon  a  final  decree  or  after- 
ward to  the  wife,  may  enter  such  a  decree  for  the  care  and  cus- 
tody of  the  minor  children  as  it  thinks  right,  may  change  the 
name  of  the  wife  at  her  request,  and  may  enforce  obedience  by 
appropriate  process.^^ 

Remarriage. 

Permitted." 


MARYLAND. 

Grounds  for  absolute  divorce. 

Adultery  by  either  party,  or  fornication  by  wife  before  mar- 
riage unknown  to  husband. 

Abandonment  for  three  years. 

Impotency  at  time  of  marriage. 

Any  cause  which  renders  a  marriage  null  and  void  ab  initio} 

7  Revised  Stats.  (1903),  p.  582,  §  2. 

8  Revised  Stats.  (1903),  p.  583,  §  12. 

9  Revised  Stats.  (1903),  p.  582,  §  6. 

10  Revised  Stats.  (1903),  pp.  .582,  583,  §§  9,  14. 

11  Revised  Stats.  (1903),  c.  62,  passim. 
1  Pub.  Gen.  Laws  (1904),  p.  386,  §  36. 

[272] 


SYNOPSIS    OF    THE    DIVORCE    STATUTES. 

Grounds  for  annulment  of  marriage. 
Consanguinity  and  affinity;  former  husband  or  wife  living.^ 

Grounds  for  partial  divorce. 
Cruel  treatment. 
Excessively  vicious  conduct. 
Abandonment  and  desertion.^ 

Nonage. 

Male  21.  Female  16.  These  are  the  ages  below  which  the 
assent  of  parent  or  guardian  is  required."* 

Residence. 

Two  years'  residence  is  required.  The  residence  of  either 
party  gives  the  court  jurisdiction.^ 

Jurisdiction. 

Equity  courts  have  jurisdiction,^  but  the  circuit  courts  for 
the  counties  and  the  superior  court  in  Baltimore  city  may  in- 
quire into  and  declare  void  any  marriage  contrary  to  the  table 
of  prohibited  degrees  and  any  second  marriage  when  the  first 
subsists.^ 

The  bill  must  be  filed  where  the  plaintiff  or  defendant  resides, 
and  if  the  defendant  is  a  non-resident  then  where  the  plaintiff 
resides.^ 

If  the  defendant  is  a  non-resident,  he  or  she  may  be  sum- 
moned by  pubfication.^ 

Service. 

Personal  or  by  pubHcation  the  same  as  in  chancery  causes. 

2  Pub.  Gen.  Laws  (1904),  p.  1500,  §  14. 

3  Pub.  Gen.  Laws  (1904),  p.  386,  §  37. 

4  Pub.  Gen.  Laws  (1904),  pp.  1498,  1499,  §  7. 

5  Pub.  Gen.  Laws  (1904),  p.  387,  §  38. 

6  Pub.  Gen.  Laws  (1904),  p.  385,  §  35. 

7  Pub.  Gen.  Laws  (1904),  p.  1500,  §  14. 

8  Pub.  Gen.  Laws  (1904),  p.  416,  §  127. 

18  [  273  ] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

If  by  publication,  once  a  week  for  four  successive  weeks,  at 
least  fifteen  days  before  the  time  fixed  for  the  appearance  of 
the  defendant.^ 

Evidence. 

Confessions  by  parties  must  be  corroborated.^" 

Care  and  custody  of  children. 

The  court  may  in  all  cases  award  the  custody  and  guardian- 
ship of  children  in  its  discretion." 

Alimony. 

May  be  awarded  pending  the  suit  or  when  a  divorce  is  de- 
creed.^^ 
The  court  may  allow  alimony  in  an  independent  cause.  *^ 

Remarriage. 

Is  not  forbidden. 


MASSACHUSETTS. 

Grounds  for  absolute  divorce. 

Adultery. 

Impotency. 

Utter  desertion  continued  for  three  successive  years  next 
prior  to  the  fihng  of  the  libel. 

Gross  and  confirmed  habits  of  intoxication  caused  by  the 
voluntary  and  excessive  use  of  intoxicating  Hquors,  opium,  or 
other  drug. 

Cruel  and  abusive  treatment,  or,  on  the  libel  of  the  wife,  if 
the  husband  being  of  sufficient  ability,  grossly  or  wantonly  and 
cruelly  refuses  or  neglects  to  provide  suitable  maintenance  for 
her. 

9  Pub.  Gen.  Laws  (1904),  p.  416,  §  127. 

10  Pub.  Gen.  Laws  (1904),  p.  387,  §  40. 

11  Pub.  Gen.  Laws  (1904),  p.  386,  §  37. 

12  Pub.  Gen.  Laws  (1904),  p.  387,  §  37. 

13  Pub.  Gen.  Laws  (1904),  pp.  377,  378,  §  14. 

[274] 


SYNOPSIS    OF   THE    DIVORCE    STATUTES. 

A  divorce  may  also  be  decreed  if  either  party  has  been  sen- 
tenced to  confinement  at  hard  labor  for  life  or  five  years  or 
more  in  the  state's  prison,  or  in  a  jail  or  house  of  correction. 

After  a  divorce  for  such  cause  no  pardon  granted  to  the  party 
so  sentenced  shall  restore  such  party  to  his  or  her  conjugal 
rights.^ 

Grounds  for  annulment  of  marriage. 
Insanity;  idiocy.^ 

Separation. 

When  the  husband  fails  to  support  his  wife,  or  has  deserted 
her,  or  when  the  wife  for  justifiable  cause  is  actually  Hving 
apart  from  the  husband,  the  probate  court  may  make  an  order 
for  the  maintenance  of  the  wife  and  children.^ 

Consanguinity  and  affinity. 

Marriage  under  these  circumstances  is  void  without  legal 
process.^ 

Former  husband  or  wife  Hving  at  time  of  marriage  void  with- 
out legal  process,^ 

Nonage. 

Male  14.  Female  12.^  But  marriage  under  these  ages  may 
be  ratified  by  cohabitation  after  arriving  at  age  of  consent,  and 
such  ratification  is  an  absolute  bar  to  cUvorce. 

Residence. 

No  divorce  will  be  granted  if  the  parties  have  never  lived 
together  in  the  commonwealth,  nor  for  a  cause  wliich  occurred 
in  another  state  or  country  unless  before  such  cause  occurred 

1  Rev.    Laws  (1902),  pp.  1352,  1353,  §§  1,  2. 

2  Rev.  Laws  (1902),  p.  1346,  §  5. 

3  Rev.  Laws  (1902),  p.  1365,  §  33. 

4  Rev.  Laws  (1902),  p.  1346,  §  8. 

5  Rev.  Laws  (1902),  p.  1345,  §  4. 

6  Parton  v.  Hervey,  1  Gray,  119. 

[275] 


THE   LAW    OF   MARRIAGE    AND   DIVORCE. 

the  parties  had  lived  together  as  husband  and  wife  ^  in  the  com- 
monwealth and  one  of  them  Uved  in  the  commonwealth  when 
the  cause  occurred.* 

If  the  Ubellant  has  hved  in  the  commonwealth  for  five  years 
last  preceding  the  fiUng  of  the  Hbel,  or  if  the  parties  were  in- 
habitants of  the  commonwealth  at  the  time  of  their  marriage, 
and  the  Ubellant  has  lived  in  the  commonwealth  for  three  years 
last  preceding  such  fihng,  a  divorce  may  be  decreed  for  any 
cause  allowed  by  law,  whether  it  occurred  in  the  commonwealth 
or  elsewhere,  unless  it  appears  that  the  Ubellant  has  removed 
into  the  commonwealth  for  the  purpose  of  obtaining  a  divorce.^ 

Jurisdiction. 

Libels  for  divorce  must  be  filed,  heard,  and  determined  in  the 
superior  court  held  for  the  county  in  which  one  of  the  parties 
Uves,  except  that  if  the  Ubellant  has  left  the  county  in  which 
the  parties  Uved  together,  and  the  libeUee  still  lives  therein, 
the  Ubel  may  be  heard  and  determined  in  the  court  held  for 
that  county.^*' 

Who  may  sign  libel. 

The  Ubel  must  be  signed  by  the  Ubellant,  if  of  sound  mind 
and  of  legal  age  to  consent  to  marriage;  otherwise,  it  may  be 
signed  by  the  guardian  of  the  Ubellant,  or  by  a  person  admitted 
by  the  com-t  to  prosecute  the  libel  as  liis  or  her  next  friend.^^ 

Service. 

The  court  or  clerk  may  order  the  Ubellee  to  be  summoned 
to  appear  and  answer  at  the  court  having  jurisdiction  of  the 
cause,  by  the  pubUcation  of  the  libel  or  of  the  substance  thereof, 
with  the  order  thereon,  in  one  or  more  newspapers  which  shall 
be  designated  in  the  order,  or  by  deUvering  to  the  UbeUee  an 

7  Weston  V.  Weston,  143  Mass.  274. 

8  Rev.  Laws  (1902),  p.  1353,  §  4. 
»  Rev.  Laws  (1902),  p.  1353,  §  5. 

10  Rev.  Laws  (1902),  p.  1353.  §  6. 
"  Rev.  Laws  (1902),  p.  1353,  §  7. 
[  276  ] 


SYNOPSIS    OF   THE   DIVORCE   STATUTES. 

attested  copy  of  the  libel  and  a  summons,  or  in  such  other 
manner  as  it  or  he  may  require.  If  such  order  is  made  by  the 
clerk,  the  court  may  order  an  additional  notice. 

If  the  hbellee  does  not  appear  and  the  court  considers  the 
notice  defective  or  insufficient,  it  may  order  further  notice. ^^ 

"Who  may  contest. 

The  person  \\ith  whom  the  libellee  is  alleged  to  have  com- 
mitted adultery  may  appear  and  contest  the  libel. ^^ 

Attachment  of  husband's  property. 

Upon  a  hbel  by  a  wife  for  a  divorce  for  a  cause  which  accrued 
after  marriage,  the  real  and  personal  property  of  the  husband 
may  be  attached  to  secure  a  suitable  support  and  maintenance 
to  her,  and  to  such  children  as  may  be  committed  to  her  care 
and  custody.^^ 

Attachments,  how  made. 

The  attachment  may  be  made  upon  the  summons  issued  upon 
the  Ubel,  and  in  the  same  manner  as  attachments  are  made 
upon  writs  in  actions  at  law,  for  an  amount  which  shall  be  ex- 
pressed in  the  summons  or  order  of  notice. 

The  attachment  may  be  made  by  trustee  process,  in  which 
case  there  shall  be  inserted  in  the  summons  or  order  of  notice 
a  direction  to  attach  the  goods,  effects,  and  credits  of  the  hbellee 
in  the  hands  of  the  alleged  trustee,  and  service  shall  be  made 
upon  the  trustee  by  copy.^^ 

Guardian  for  insane  libellee. 

If  during  the  pendency  of  a  libel,  the  hbellee  becomes  in- 
sane, the  court  may  appoint  a  suitable  guardian  to  appear  and 
answer  in  hke  manner  as  a  guarcUan  for  an  infant  defendant 
in  an  action  at  law  may  be  appointed. ^^ 

12  Rev.  Laws  (1902),  p.  1353,  §  8. 

13  Rev.  Laws  (1902),  p.  1354,  §  9. 

14  Rev.  Laws  (1902),  p.  1354,  §  10. 

15  Rev.  Laws  (1902),  p.  1354,  §  11. 

16  Rev   Laws  (1902),  p.  1354,  §  13. 

[277] 


THE    LAW   OF   MARRIAGE   AND   DIVORCE. 
Costs  or  alimony  during  pendency  of  libel. 

The  court  may  require  the  husband  to  pay  into  court  for 
the  use  of  the  wife,  during  the  pendency  of  the  Ubel  an  amount 
which  may  enable  her  to  maintain  or  defend  the  Hbel,  although 
exceeding  the  taxable  costs;  and  may  require  him  to  pay  to  the 
wife  alimony  during  the  pendency  of  the  Ubel.^' 

Protection  of  personal  liberty  of  wife  during  pendency  of  libel. 

The  court  sitting  in  any  county  may,  upon  the  petition  of 
the  wife,  prohibit  the  husband  from  imposing  any  restraint 
upon  her  personal  liberty  during  the  pendency  of  the  libel. ^* 

Custody  of  children  during  pendency  of  libel. 

The  court  may,  upon  the  application  of  either  party,  make 
such  order  relative  to  the  care  and  custody  of  the  minor  chil- 
dren of  the  parties  during  the  pendency  of  the  libel  as  it  may 
consider  expecUent  and  for  the  benefit  of  the  children. ^^ 

Continuance  of  libel,  and  orders  for  temporary  separation,  etc. 

The  court  may,  without  entering  a  decree  of  divorce,  cause 
the  Ubel  to  be  continued  upon  the  docket  from  time  to  time, 
and  during  such  continuance  may  make  orders  and  decrees 
relative  to  a  temporary  separation  of  the  parties,  the  separate 
maintenance  of  the  wife  and  the  custody  and  support  of  minor 
children.  Such  orders  and  decrees  may  be  changed  or  an- 
nulled as  the  court  may  determine,  and  shall,  while  they  are 
in  force,  supersede  any  order  or  decree  of  the  probate  court 
theretofore  made.^° 

Decrees  of  divorce  to  be  entered  nisi. 

Decrees  of  divorce  shall  in  the  first  instance  be  decrees  nisi, 
and  shall  become  absolute  after  the  expiration  of  six  months 
from  the  entry  thereof,  unless  the  court  before  the  expiration 

17  Rev.  Laws  (1902),  p.  1354,  §  14. 

18  Rev.  Laws  (1902),  p.  1354,  §  15. 

19  Rev.  Laws  (1902),  p.  1354,  §  16. 

20  Rev.  Laws  (1902),  p.  1354,  §  17. 

[278] 


SYNOPSIS    OP   THE    DIVORCE    STATUTES. 

of  said  period,  for  sufficient  cause,  upon  application  of  any 
party  interested,  otherwise  orders.^^ 

Libel  for  desertion  not  to  be  defeated  by  temporary  return. 

A  libel  for  divorce  for  desertion  shall  not  be  defeated  by  a 
temporary  return  or  other  act  of  the  hbellee,  if  the  court  finds 
that  such  return  or  other  act  was  not  made  or  done  in  good 
faith,  but  with  the  intent  to  defeat  such  libel.^^ 

Resumption  of  former  name. 

The  court  upon  granting  a  cUvorce  to  a  woman  may  allow 
her  to  resume  her  maiden  name  or  the  name  of  a  former  hus- 
band. ^^ 

Remarriage. 

After  a  decree  of  divorce  has  become  absolute,  either  party 
may  marry  again  as  if  the  other  were  dead,  except  the  party 
from  whom  the  divorce  was  granted  shall  not  marry  within 
two  years  after  the  decree  has  become  absolute.^'* 

Effect  of   divorce  on  legitimacy  of   children. 

A  divorce  for  adultery  committed  by  the  wife  shall  not  affect 
the  legitimacy  of  the  issue  of  the  marriage,  but  such  legitimacy, 
if  questioned,  shall  be  tried  and  determined  according  to  the 
course  of  the  common  law.^^ 

Effect  of  divorce  on  rights  to  property. 

Upon  a  divorce  for  adultery  committed  by  the  wife,  her  title 
to  her  separate  real  and  personal  property  during  her  hfe  shall 
not  be  affected,  except  that  the  court  may  decree  to  the  hus- 
band so  much  of  such  property  as  it  considers  necessary  for 
the  support  of  the  minor  children  of  the  marriage,  who  may 
have  been  decreed  to  the  husband's  custody;  and  if  the  wife 

21  Rev.  Laws  (1902),  p.  1355,  §  18. 

22  Rev.  Laws  (1902),  p.  1355,  §  19. 

23  Rev.  Laws  (1902),  p.  1355,  §  20. 

24  Rev.  Laws  (1902),  p.  1355,  §  21. 

25  Rev.  Laws  (1902),  p.  1355,  §  22. 

[279] 


THE   LAW  OF   MARRIAGE   AND    DIVORCE. 

afterward  contracts  a  lawful  marriage,  the  interest  of  the  di- 
vorced husband  in  the  wife's  separate  real  and  personal  prop- 
erty, after  her  death,  shall  cease,  except  in  so  much  thereof  as 
may  have  been  decreed  to  him  as  herein  provided.^^ 

Do-wer  rights  of  "wife  after  divorce. 

After  a  divorce,  a  wife  shall  not  be  entitled  to  dower  in  the 
land  of  her  husband,  unless  after  a  decree  of  divorce  nisi  granted 
upon  the  libel  of  the  wife  the  husband  dies  before  such  decree 
is  made  absolute,  except  that,  if  the  divorce  was  for  the  cause 
of  adultery  committed  by  the  husband  or  because  of  his  sen- 
tence to  confinement  at  hard  labor,  she  shall  be  entitled  to  her 
dower  in  the  same  manner  as  if  he  were  dead.^^ 

Care  and  support  of   children. 

Upon  a  decree  of  divorce,  or  upon  petition  at  any  time  after 
such  decree,  the  court  may  make  such  decree  as  it  considers 
expedient  relative  to  the  care,  custody,  and  maintenance  of  the 
minor  children  of  the  parties,  and  may  determine  with  which 
of  the  parents  the  children  or  any  of  them  shall  remain;  and 
afterward  may  from  time  to  time,  upon  petition  of  either  parent, 
revise  and  alter  such  decree  or  make  a  new  decree,  as  the  cir- 
cumstances of  the  parents  and  the  benefit  of  the  children  re- 
quire.^* 

Care   and    support  of   children  -when    divorce    is    obtained    out  of 
commonwealth. 

If,  after  a  cUvorce  has  been  decreed  in  another  state  or  coun- 
try, minor  children  of  the  marriage  are  inhabitants  of  the 
commonwealth,  the  superior  court,  upon  the  petition  of  either 
parent  or  of  a  next  friend  in  behalf  of  the  children,  after  notice 
to  both  parents,  may  make  decrees  relative  to  their  care,  cus- 
tody, education,  and  maintenance  as  if  the  divorce  had  been 
decreed  in  the  commonwealth.'^ 

26  Rev.  Laws  (1902),  p.  1355,  §  23. 

27  Rev.  Laws  (1902),  p.  1356,  §  24. 

28  Rev.  Laws  (1902),  p.  1356,  §  25. 

29  Rev.  Laws  (1902),  p.  1356,  §  26. 

[280] 


SYNOPSIS    OF   THE    DIVORCE   STATUTES. 

Children  not  to  be  removed  from  the  common-wealth. 

A  minor  child  of  divorced  parents,  who  is  a  native  of,  or  has 
resided  five  years  within  the  commonwealth,  and  over  whose 
custody  and  maintenance  the  superior  court  has  jurisdiction, 
shall  not,  if,  of  suitable  age  to  signify  his  consent,  or,  if  under 
that  age,  without  the  consent  of  both  parents  be  removed  from 
the  commonwealth,  unless  the  court  upon  cause  shown  other- 
wise orders. 

The  court,  upon  apphcation  of  any  person  in  behalf  of  such 
child,  may  require  security  and  may  issue  writs  and  processes 
to  effect  the  purposes  of  this  provision.^" 

Custody  of  children. 

In  making  an  order  or  decree  relative  to  the  custody  of  chil- 
dren, pending  a  controversy  between  their  parents,  or  relative 
to  their  final  possession,  the  rights  of  the  parents  shall,  in  the 
absence  of  misconduct,  be  held  to  be  equal,  and  the  happiness 
and  welfare  of  the  children  shall  determine  their  custody  or 
possession.^^ 

General  po-wrers  of  court. 

The  superior  court  may,  if  the  course  of  proceeding  is  not 
specially  prescribed,  hear  and  determine  all  matters  coming 
within  the  purview  of  divorce  proceefUngs  according  to  the 
course  of  proceedings  in  ecclesiastical  courts  or  in  courts  of 
equity,  and  may  issue  process  of  attachment  and  of  execution 
and  all  other  proper  and  necessary  processes.^^ 

Alimony. 

Upon  a  divorce,  or  upon  petition  at  any  time  after  a  divorce, 
the  superior  court  may  decree  aUmony  to  the  wife,  or  a  part 
of  her  estate,  in  the  nature  of  ahmony,  to  the  husband.^^ 

30  Rev.  Laws  (1902),  p.  1356,  §  27. 

31  Rev.  Laws  (1902),  p.  1356,  §  28. 

32  Rev.  Laws  (1902),  p.  13.56,  §  29. 

33  Rev.  Laws  (1902),  p.  1357,  §  .30. 

[281] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

Enforcement  of  decrees  for  alimony. 

The  court  may  enforce  decrees  made  for  alimony,  or  for 
allowance  in  the  nature  of  ahmony,  in  the  same  manner  as  it 
may  enforce  decrees  in  equity. ^^ 

Security  for  alimony. 

When  alimony  or  an  annual  allowance  is  decreed  for  the 
wife  or  children,  the  court  may  require  sufficient  security  to  be ' 
given  for  its  payment  according  to  the  terms  of  the  decree.^^ 

Revision  of  decree  for  alimony,  etc. 

After  a  decree  for  alimony  or  an  annual  allowance  for  the 
wife  or  children,  and  also  after  a  decree  for  the  appointment 
of  trustees  to  receive  and  hold  property  in  trust  for  the  use  of 
the  wife  or  children,  the  court  may,  from  time  to  time,  upon 
petition  of  either  party,  revise  and  alter  its  decree  relative  to 
the  amount  of  such  ahmony  or  annual  allowance  and  the  pay- 
ment thereof,  and  also  relative  to  the  appropriation  and  pay- 
ment of  the  principal  and  income  of  the  property  so  held  in 
trust,  and  may  make  any  decree  relative  to  said  matters  which 
it  might  have  made  in  the  original  suit.^^ 

Costs  on  petitions  for  alimony,  etc. 

In  all  proceedings  under  the  provisions  of  the  divorce  stat- 
ute, the  court  may  award  costs  in  its  discretion. ^^ 

Foreign  divorces. 

A  divorce  decreed  in  another  state  or  country,  according  to 
the  laws  thereof,  by  a  court  having  jurisdiction  of  the  cause 
and  of  both  the  parties,  shall  be  vahd  and  effectual  in  the 
commonwealth;  but  if  an  inhabitant  of  the  commonwealth 
goes  into  another  state  or  country  to  obtain  a  divorce  for  a 
cause  which  occurred  in  the  commonwealth  while  the  parties 

34  Rev.  Laws  (1902),  p.  1357,  §  31. 

35  Rev.  Laws  (1902),  p.  1357,  §  32. 

36  Rev.  Laws  (1902),  p.  1357,  §  33. 

37  Rev.  Laws  (1902),  p.  1357,  §  34. 

[282] 


SYNOPSIS    OF   THE    DIVORCE   STATUTES. 

resided  in  the  commonwealth,  or  for  a  cause  which  would  not  au- 
thorize a  divorce  by  the  laws  of  the  commonwealth,  a  divorce 
so  obtained  shall  be  of  no  force  or  effect  in  the  commonwealth.^* 

Criminal  provisions. 

If  persons  who  have  been  divorced  from  each  other  cohabit 
as  husband  and  wife,  or  hve  together  in  the  same  house,  they 
shall  be  held  to  be  guilty  of  adultery, ^^ 

Penalty  for  personation,  etc.  in  divorce  suits. 

Whoever  falsely  personates  another  or  wilfully  and  fraud- 
ulently procures  a  person  to  personate  another,  or  fraudulently 
procures  false  testimony  to  be  given,  or  makes  a  false  or  fraud- 
ulent return  of  service  of  process  upon  a  libel  for  cUvorce  or  in 
any  proceeding  connected  there\\ith,  shall  be  punished  by  a 
fine  of  not  more  than  one  thousand  dollars  or  by  imprisonment 
for  not  more  than  two  years. ^'^ 

Penalty  for  procuring  unla-wful  divorce. 

Whoever  knowingly  procures  or  obtains  or  assists  another 
to  procure  or  obtain  any  false,  counterfeit,  or  fraudulent  di- 
vorce, or  decree  of  divorce,  or  any  cUvorce  or  decree  of  divorce 
from  a  court  of  another  state  for,  or  in  favor  of,  a  person  who 
at  the  time  of  making  apphcation  therefor  was  a  resident  of  the 
commonwealth,  such  court  not  having  jurisdiction  to  grant  such 
decree,  shall  be  punished  by  a  fine  of  not  more  than  two  hundred 
doUars  or  by  imprisonment  for  not  more  than  six  months."*^ 

Penalty  for  advertising  to  procure  divorces. 

Whoever,  not  being  duly  atlmitted  as  an  attorney-at-law 
in  the  commonwealth,  WTites,  prints,  or  publishes,  or  soUcits 
another  to  ^\Tite,  print,  or  publish,  any  notice,  circular,  or  ad- 
vertisement soUciting  employment  in  the  business  of  procming 

38  Rev.  Laws  (1902),  p.  1357,  §  35. 

39  Rev.  Laws  (1902),  p.  1357,  §  36. 

40  Rev.  Laws  (1902),  p.  1357,  §  37. 

41  Rev.  Laws  (1902),  p.  1358,  §  38. 

[283] 


THE   LAW   OF   MARRIAGE    AND    DIVORCE. 

divorces  or  offering  inducements  for  the  purpose  of  procuring 
such  employment  shall  be  punished  by  a  fine  of  not  more  than 
two  hundred  dollars,  or  by  imprisonment  for  not  more  than 
six  months. "^^ 

Penalty  for  unla-wiully  issuing  certificates  of  divorce. 

Whoever,  except  in  comphance  with  an  order  of  a  court  of 
competent  jurisdiction,  gives,  signs,  or  issues  any  writing  which 
purports  to  grant  a  divorce  to  persons  who  are  husband  and 
wife  according  to  the  laws  of  the  commonwealth  or  which  pur- 
ports to  be  a  certificate  that  a  divorce  has  been  granted  to 
such  persons  shall  be  punished  by  a  fine  of  not  more  than  one 
thousand  dollars  or  by  imprisonment  in  jail  for  not  more  than 
three  years,  or  by  both  such  fine  and  imprisonment.^^ 

Notice  to  district  attorney  of  criminal  offences. 

If  a  divorce  is  granted  for  a  cause  which  constitutes  a  crime, 
committed  within  the  commonwealth  and  within  the  time  pro- 
vided by  law  for  making  complaints  and  finding  indictments 
therefor,  the  court  which  grants  the  divorce  may  in  its  dis- 
cretion cause  notice  of  such  facts  to  be  given  by  the  clerk  of 
the  court  to  the  district  attorney  for  the  county  in  which  such 
crime  was  committed,  with  a  fist  of  the  witnesses  proving  such 
crime  and  any  other  information  which  the  court  may  consider 
proper,  and  thereupon  the  district  attorney  shall  cause  com- 
plaint therefor  to  be  made  before  a  magistrate  having  juris- 
diction thereof,  or  shall  present  the  evidence  thereof  to  the 
grand  jury.^^ 

Rules  for  the  regulation  of  practice  in  divorce  in  Massachusetts. 

1. 

Where  the  libellee  is  described  as  residing  within  the  com- 
monwealth, personal  service  shall  be  made.     In  all  other  cases 

42  Rev.  Laws  (1902),  p.  1358,  §  39. 

43  Rev.  Laws  (1902),  p.  1358,  §  40. 

44  Rev.  Laws  (1902),  p.  1358,  §  41. 

[284] 


SYNOPSIS   OF   THE    DIVOKCE   STATUTES. 

service  may  be  made  by  publication,  the  last  publication  to 
be  at  least  fourteen  days  before  the  return  day,  and,  in  addi- 
tion, an  attested  copy  of  the  Ubel,  with  the  order  thereon,  shall 
be  sent  by  letter,  registered  when  practicable,  to  the  residence 
of  the  Ubellee,  as  set  out  in  the  hbel,  or  where  none  is  thus 
set  out,  to  the  last  known  residence. 

Proof  of  the  identity  of  the  party  served,  and,  if  personal 
service  is  not  made,  of  actual  notice  where  practicable,  will  be 
required. 

The  order  of  notice,  whether  by  pubUcation  or  by  personal 
service,  together  with  the  affidavit  or  return  of  service,  shall  be 
filed  with  the  clerk  before  said  cases  are  placed  upon  the  trial 
list,  and  all  divorce  cases  must  be  marked  for  trial  in  the  sev- 
eral counties  as  provided  by  the  common  law  rules. 

Affidavits  of  notice  by  pubhcation  must  be  accompanied  by 
a  copy  of  each  issue  of  the  newspapers  in  which  the  same  was 
ordered  published  containing  a  copy  of  the  libel  and  order.'*^ 

2. 

Where  personal  service  is  made,  the  libellee  shall  have  ten 
days,  and  where  service  is  by  pubhcation,  if  described  as  in 
any  part  of  the  United  States  east  of  the  Mississippi  river,  or 
in  the  states  of  Louisiana,  Missouri,  Iowa,  or  Mimiesota,  one 
month;  if  described  as  in  any  other  of  the  United  States,  or 
New  Brunswick,  Nova  Scotia,  or  Canada,  two  months;  if  de- 
scribed as  elsewhere  in  the  United  States,  or  in  Great  Britain, 
Ireland,  or  France,  three  months;  and  if  described  as  in  other 
foreign  parts  or  residence  unknown,  six  months,  from  the  re- 
turn day  \vithin  which  to  appear.'*^ 

3. 

All  causes  arising  upon  appeals  from  the  probate  court  shall 

45  Divorce  Rules  of  Superior  Court,  I.  ^ 

*8  Divorce  Rules  of  Superior  Court,  II. 

[285] 


THE    LAW  OF   MARRIAGE   AND   DIVORCE. 

be  entered  on  the  divorce  docket  and  placed  upon  its  trial  list 
of  divorce  cases.^^ 

4. 

The  divorce  list  will  be  taken  up  in  the  counties  at  designated 
times,  and  be  proceeded  wdtli  in  its  order,  gi\ing  precedence 
to  the  uncontested  cases,  and  no  case  will  be  heard  at  any  other 
time  except  for  special  cause  shown.  In  counties  where  there 
are  no  separate  sessions  for  court  work  the  divorce  Ust  will  be 
taken  up  at  each  sitting,  at  such  time  as  the  presiding  justice 
shall  designate,  and  be  proceeded  with  in  the  same  manner.^ 

5. 

At  any  time  before  the  expiration  of  six  months  from  the 
granting  of  a  decree  of  divorce  nisi,  the  hbellee,  or  any  party 
interested,  may  file  in  the  office  of  the  clerk  for  the  county  in 
which  the  hbel  is  pending,  a  statement  of  objections  to  an  ab- 
solute decree;  such  statement  to  set  forth  the  facts  on  which 
it  is  founded,  verified  by  affidavit. 

The  court  may  by  general  order  direct  that  such  decree  shall 
not  become  absolute  until  such  objections  have  been  disposed 
of  by  the  court."** 

6. 

The  libel,  all  amendments  thereto,  and,  in  contested  cases, 
answers,  shall  be  signed  by  the  parties.^° 

7. 

Apphcation  in  divorce  cases  by  a  wife  for  an  allowance  for 
purposes  of  defence  shall  be  in  writing  in  substantially  the 
following  form,  and  shall  be  signed  by  the  hbellee  and  verified 
by  her  attorney. 

47  Divorce  Rviles  of  Superior  Court,  III. 

48  Divorce  Rules  of  Superior  Court,  IV. 

49  Divorce  Rules  of  Superior  Court,  V. 

50  Divorce  Rules  of  Superior  Court,  VI. 

[286] 


SYNOPSIS   OF   THE    DIVORCE   STATUTES. 


SS. 

SUPERIOR  COURT.  No. 
Libellant,  v. 


Application  for  allowance. 

Respectfully  represents  the  libellee 

that  she  believes  that  she  has  a  defence  to  tliis  hbel  and  intends 
in  good  faith  to  contest  it  and  to  use  for  such  defence  any 
allowance  made. 

Wherefore  she  asks  an  allowance  to  enable  her  to  defend  the 
Hbel. 

(Signed) 

Libellee. 
I  believe  the  above  statement  to  be  true. 

(Signed) 

Libellee's  Attorney. 

Ordered,  that  the  Hbellant  on  or  before 

pay  into  court  the  sum  of 

dollars  as  an  allowance  to  said  Ubellee.  Said  sum  may  be  paid 
by  the  clerk  to  the  hbellee's  attorney. 


Clerk.51 

MICHIGAN. 
Grounds  for  absolute  divorce. 
Adultery. 

Physical  incapacity. 
Habitual  drunkenness. 
Desertion  for  two  years. 
Extreme  cruelty. 

Sentence  of  imprisonment  for  three  years. 
Failure  to  support. 
Or  a  cUvorce  may  be  granted,  in  the  discretion  of  the  court, 

51  Divorce  Rules  of  Superior  Court,  VII. 

[287] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

to  any  resident  of  the  state  whose  husband  or  wife  shall  have 
obtained  a  divorce  in  any  other  state. ^ 

Grounds  for  partial  divorce. 

Extreme  cruelty. 

Desertion  for  two  years. 

Neglect  to  provide  and  maintain. ^ 

Decrees  may  be  made  absolute  for  the  same  causes  in  the 
discretion  of  the  court,^  if  asked.^ 

Marriages  void  without  legal  process. 

Consanguinity  and  affinity;  force;  fraud;  former  husband 
or  wife  hving.^  Where  one  party  has  been  sentenced  to  im- 
prisonment for  life.^ 

Nonage. 

Male  18.  Female  16.^  These  marriages  are  void  without 
legal  process  if  the  parties  separate  under  this  age,  but  the 
marriage  may  be  ratified  after  arriving  at  full  age,  if  the  par- 
ties cohabit.* 

Residence. 

One  year  if  cause  arose  in  the  state,  or  two  years  if  cause 
arose  elsewhere. 

No  divorce  is  granted  in  any  case  unless  the  defendant  is 
domiciled  in  the  state,  or  was  domiciled  in  the  state  at  the 
time  the  cause  arose,  or,  was  served  with  order  or  by  publica- 
tion or  appeared.^ 

1  Compiled  Laws  (1897),  §§  8621,  8622. 

2  Compiled  Laws  (1897),  §8622. 

3  Compiled  Laws  (1897),  §  8623. 

i  Public  Acts  of  1905,  pp.  184,  185. 

5  Compiled  Laws  (1897),  §§  8616,  8617. 

6  Compiled  Laws  (1897),  §  8620. 

7  Compiled  Laws  (1897),  §  8.588. 

8  Compiled  Laws  (1897),  §  8617. 

8  Public  Acts  of  1899,  pp.  326,  327. 

[288] 


SYNOPSIS    OF    THE    DIVORCE    STATUTES. 

Jurisdiction, 

Circuit  court  and  court  of  chancery.^" 

Service. 

Personal  service  in  the  state.  If  a  non-resident,  the  court 
issues  an  order  to  defendant  to  appear  within  a  period  not  ex- 
ceeding four  months.  The  order  must  be  pubUshed  witliin 
twenty  days  of  issuing  and  for  six  consecutive  weeks. 

Personal  service  outside  of  the  state  is  equivalent  to  publi- 
cation.^^ 

No  trial  is  allowed  until  two  months  after  filing  of  bill,  ex- 
cept for  desertion. ^2 

Evidence. 
Confessions  must  be  corroborated. 
Either  party  may  testify  except  as  to  adultery.^^ 
If  parties  have  a  child  or  cliildren  under  fourteen  years  of 

age,  the  prosecuting  attorney  may  contest  the  divorce.^^ 

Alimony. 

Allowed. 

In  case  of  absolute  divorce  the  court  makes  such  provision 
for  care  of  children  as  may  seem  advisable.  The  wife  takes 
all  her  real  estate  and  dower  interest  in  the  real  estate  of  the 
husband,  if  the  divorce  be  for  any  other  cause  than  her  adul- 
tery, in  which  case  she  forfeits  her  dower. 

Such  allowances  may  also  be  made  as  the  court  may  deter- 
mine proper  from  the  property  that  shall  have  come  to  the 
husband  by  reason  of  marriage,  or  such  amount  of  money  as 
the  court  may  see  fit  in  Heu  thereof.  In  case  of  failure  of  the 
husband  to  pay  such  allowance  as  shall  be  decreed,  the  court 

10  Compiled  Laws  (1897),  §  8621. 

11  Compiled  Laws  (1897),  §§  486,  487. 

12  Public  Acts  of  1899,  p.  327. 

13  Compiled  Laws  (1897),  §  8652. 

14  Compiled  Laws  (1897),  §  8657. 

19  [  289  ] 


THE    LAW   OP   MARRIAGE    AND    DIVORCE. 

may  award  execution  for  the  collection  of  the  same  or  may 
sequester  his  real  and  personal  estate. ^^ 

Venereal  disease. 

A  person  who  is  afflicted  with  syphilis  or  gonorrhoea  and  is 
not  cured  of  the  same  is  incapable  of  contracting  marriage. ^^ 

Remarriage. 

Permitted  in  the  discretion  of  the  court." 

MINNESOTA. 
Grounds  for  absolute  divorce. 

Adultery. 

Impotency. 

Cruel  and  inhuman  treatment. 

Either  party  sentenced  to  state's  prison. 

Wilful  desertion  for  one  year  next  preceding  filing  of  com- 
plaint. 

Habitual  drunkenness  for  one  year  immediately  preceding 
filing  of  complaint.^ 

Grounds  for  annulment  of  marriage. 

Nonage;  lack  of  understanding;  force;  or  fraud. ^  Subse- 
quent voluntary  cohabitation  may  remove  these  grounds.^ 

Grounds  for  partial  divorce. 

Cruel  and  inhuman  treatment. 

Conduct  rendering  it  unsafe  and  improper  for  the  wife  to 
cohabit  with  the  husband. 
Abandonment  and  neglect  to  provide."* 

15  Compiled  Laws  (1897),  §§   S630-S641. 

16  Public  Acts  of  1905,  pp.  185,  186. 

17  Compiled  Laws  (1897),  §  8658. 

1  Gen.  Laws  of  1895,  p.  158. 

2  Gen.  Stats.  (1894),  §4786. 

3  Gen.  Stats.  (1894),  §  4788. 
i  Gen.  Stats.  (1894),  §  4815. 

[290] 


SYNOPSIS   OF   THE   DIVORCE   STATUTES. 

Consanguinity  and  afiBnity ;  former  husband  or  wife  living  at  time 
of  subsequent  marriage. 

Marriages  under  these  circumstances  are  void  without  legal 

process.^ 

Nonage. 

Male  18.  Female  15.®  But  these  marriages  may  be  ratified 
by  cohabitation  after  arriving  at  lawful  age.^ 

Residence. 

One  year's  residence  is  required  except  where  adultery  was 
committed  in  the  state.* 

Jurisdiction. 
District  court.^ 

Service. 

Personal  service  or  by  publication.  If  by  pubhcation,  once 
a  week  for  three  weeks  returnable  in  six  weeks,  ^° 

Answer  may  be  made  witliin  thirty  days  from  last  pubh- 
cation.^^ 

Evidence. 

Actions  on  the  ground  of  adultery  must  be  brought  within 
three  years  from  date  of  discovery  of  offence. ^^ 

Alimony. 

Allowed.^^ 

Remarriage. 

Either  party  may  remarry  after  six  months.^"* 

5  Gen.  Stats.  (1894),  §  4785. 

6  Gen.  Stats.  (1894),  §  4769. 
'  Gen.  Stats.  (1894),  §  4788. 

8  Gen.  Stats.  (1894),  §  4792. 

9  Gen.  Stats.  (1894),  §  4834. 

10  Gen.  Stats.  (1894),  §§  4796,  4969. 

11  Gen.  Stats.  (1894),  §  4797. 

12  Gen.  Stats.  (1894),  §  4793. 

13  Gen.  Stats.  (1894),  §§  4799-4810,  4819;  Gen.  Laws  of  1901,  p.  189- 

14  Gen.  Laws  of  1901,  p.  285. 

[291] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

MISSISSIPPI. 

Grounds  for  absolute  divorce. 

Adultery. 

Consanguinity  and  affinity. 

Conviction  and  sentence  to  penitentiary,  if  not  pardoned 
before  sent  there. 
Habitual  cruel  and  inhuman  treatment. 
Wilful  desertion  for  two  years. 
Habitual  drunkenness. 
Habitual  use  of  opium  or  other  Uke  drug. 
Former  husband  or  wife  living. 
Impotency, 

Insanity  or  idiocy,  if  not  known  to  the  other  party. 
Pregnancy  by  other  than  husband.^ 

Nonage. 

Male  21.  Female  18.  These  are  the  ages  under  which  li- 
censes are  forbidden  without  the  consent  of  parent  or  guardian.^ 

Residence. 

One  year's  residence  is  required  unless  both  parties  are 
domiciled  in  the  state  or  service  has  been  made  on  the  de- 
fendant in  the  state.^ 

Jurisdiction. 

Chancery  court."* 

Service. 

Personal  service  or  by  publication. 

Personal  service  within  or  without  the  state,  and,  if  service 
is  made  by  pubUcation,  publication  should  be  made  once  a 
week  for  three  consecutive  weeks.^ 

1  Code  (1892),  §  1562. 

2  Code  (1892),  §2860. 

3  Code  (1892),  §  1567. 

4  Code  (1892),  §482  (b). 

5  Code  (1892),  §§  3427,  3421,  3423. 

[292] 


SYNOPSIS   OF  THE   DIVORCE   STATUTES. 

Evidence. 
Trial  may  be  in  open  court. 
Either  party  may  testify.^ 
No  divorce  allowed  except  from  the  bonds  of  matrimony. 

Alimony. 

Allowed  after  the  decree  in  the  discretion  of  the  court.'=' 

Remarriage. 

Not  permitted  to  libellee  in  the  discretion  of  the  court,  when 
divorce  granted  for  adultery.* 


MISSOURI. 

Grounds  for  absolute  divorce. 

Impotency  at  time  of  marriage. 

Wife  or  husband  Uving  at  time  of  marriage. 

Adultery. 

Absent  one  year  without  reasonable  cause. 

Conviction  of  felony  or  infamous  crime  since  marriage. 

Habitual  drunkenness  for  space  of  one  year. 

Guilty  of  cruel  or  barbarous  treatment  as  to  endanger  the 
life  of  the  other. 

Offering  such  indignities  to  the  other  as  shall  render  his  or 
her  condition  intolerable;  or  when  the  husband  shall  be  guilty 
of  such  conduct  as  to  constitute  him  a  vagrant  within  the 
meaning  of  the  law  respecting  vagrants;  or  where  prior  to  the 
contract  of  marriage,  or  the  solemnization  thereof,  either  party 
shall  have  been  con\dcted  of  a  felony  or  infamous  crime  in  any 
state,  territory,  or  country,  without  knowledge  on  the  part  of 
the  other  party  of  such  fact  at  the  time  of  such  marriage;  or 
where  the  intended  \^dfe,  at  the  time  of  contracting  marriage 
or  at  the  time  of  the  solemnization  thereof,  shall  have  been 
pregnant  by  any  other  man  than  her  intended  husband,  and 

6  Code  (1S92),  §  1571. 

7  Code  (1892),  §  1565. 

8  Code  (1892),  §  1563. 

[293] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE. 

without  his  knowledge  at  the  time  of  such  solemnization.  The 
injured  party,  for  any  of  the  causes  above  enumerated,  may 
obtain  a  divorce  from  the  bonds  of  matrimony;  but  no  such 
divorce  shall  affect  the  legitimacy  of  the  children  of  such 
marriage.^ 

Grounds  for  annulment  of  marriage. 

IncapabiUty  to  contract.^ 

Nonage. 

Male  14.  Female  12.  There  is  no  statute  on  this  subject. 
The  ages  given  are  the  common  law  ages  of  consent. 

Residence. 

One  year's  residence  required,  unless  the  acts  were  committed 
in  the  state,  or  whilst  one  of  the  parties  resided  in  the  state. ^ 

Jurisdiction. 
Circuit  court."* 

Service. 

Personal  service  or  by  publication. 

If  the  defendant  is  a  non-resident,  he  or  she  must  be  served 
with  a  notice  of  the  suit  once  a  week  for  four  consecutive  weeks, 
the  last  insertion  to  be  at  least  fourteen  days  before  the  term 
day. 

Personal  service  without  the  state  is  equivalent  to  pubUca- 
tion.^ 

Evidence. 

All  trials  must  be  by  the  court. ^ 

1  Rev.  Stats.  (1899),  §  2921. 

2  Rev.  Stats.  (1899),  §4311. 

3  Rev.  Stats.  (1899),  §2924. 

4  Rev.  Stats.  (1899),  §2922. 

5  Code  of  Civil  Procedure  (1896),  §§  390,  395,  401,  402. 
8  Rev.  Stats.  (1899),  §  2922. 

[294] 


SYNOPSIS    OF  THE   DIVORCE   STATUTES. 


Alimony. 

Allowed.' 

Reraarriage. 
Not  forbidden. 


MONTANA. 
Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony  unless  the  parties  cohabit  after  convic- 
tion. 
Extreme  cruelty. 
Wilful  desertion  for  one  year. 
Habitual  intemperance  for  one  year. 
Wilful  neglect  for  one  year.^ 

Grounds  for  annulment  of  marriage. 

Force;  fraud;  former  husband  or  wife  living;  physical  in- 
capacity; nonage;  unsoundness  of  mind.^ 


Grounds  for  partial  divorce. 

There  is  no  provision  made  by  statutes  for  separations,  but 
the  court  may  decree  separate  support  and  mamtenance  for 
the  wife  and  cliildren.^ 

Consanguinity  and  aflBnity. 

Marriages  under  these  circumstances  are  void  without  legal 
process.^ 

Nonage. 

Male  18.     Female  16.^ 

7  Rev.  Stats.  (1899),  §§2926,  2927. 

1  Civil  Code  (1895),  §§  132-146. 

2  Civil  Code  (1895),  §  110. 
3CivUCode  (1895),  §  190. 

4  Civil  Code  (1895),  §§54,55. 

5  Civil  Code  (1895),  §51. 

[295] 


THE    LAW    OF    IMARRIAGE    AND    DIVORCE. 
Residence. 

The  plaintiff  must  be  a  resident  of  the  state  for  one  year 
prior  to  bringing  action.^ 

Jurisdiction, 

District  court/ 

Service. 

Personal  service  or  by  publication.     If  by  publication,  not 

less  than  four  consecutive  weeks. 

Personal  service  out  of  state  is  equivalent  to  publication.* 

Evidence. 

Actions  for  annulment  must  be  begun  as  follows: — 

For  nonage,  before  arriving  at  the  age  of  consent. 

For  former  husband  or  wife  living  at  the  time  of  the  subse- 
quent marriage,  during  the  hfe  of  either  former  husband  or 
wife  as  the  case  may  be. 

For  insanity,  before  the  death  of  either  party. 

For  fraud  or  force,  witliin  two  years. 

For  impotency,  within  four  years  of  time  of  marriage. 

For  adultery  within  two  years  from  the  time  the  act  was 
committed  or  knowledge  of  its  having  been  committed. 

For  conviction  of  felony,  within  two  years  from  time  of 
sentence.^ 

No  decree  by  default;  but  the  cause  must  be  heard  in  open 
court.^°    The  sitting  of  the  court  may  be  private." 

Alimony. 

Allowed.^2 

6  Civil  Code  (1895),  §176. 

7  Code  of  Civil  Procedure  (1895),  §  41. 

8  Code  of  Civil  Procedure  (1895),  §§  636-643. 
9 Civil  Code  (1895),  §  111. 

10  Civil  Code  (1895),  §  177. 

11  Code  of  Civil  Procedure  (1895),  §  101. 

12  Civil  Code  (1895),  §§  190-196. 

[296] 


SYNOPSIS    OF   THE    DIVORCE    STATUTES. 
Remarriage. 

Permitted  by  innocent  party  after  two  years.  By  guilty 
party  after  three  years. ^^ 

■     NEBRASKA. 

Grounds  for  absolute  divorce. 

Adultery. 

Physical  incapacity  at  time  of  marriage. 

Sentence  to  three  years  or  more  imprisonment. 

Two  years  wilful  abandonment. 

Habitual  drunkenness.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity  and  affinity;  nonage;  force;  fraud;  former 
husband  or  wife  U\dng  at  time  of  subsequent  marriage;  insan- 
ity; idiocy;  miscegenation. ^ 

Grounds  for  absolute  divorce  or  partial  divorce. 

Divorce  from  bed  and  board  may  be  had  for  extreme  cruelty, 
utter  desertion  for  two  years,  and  to  the  wife  for  wilful  failure 
of  the  husband  to  provide  for  her.^ 

Nonage. 

Male  18.  Female  16. "*  But  marriages  under  these  circum- 
stances may  be  ratified  by  cohabitation  after  the  parties  have 
arrived  at  legal  age  and  such  ratification  is  an  absolute  bar  to 
divorce  on  this  ground.^ 

Residence. 

Complainant  must  have  resided  in  the  state  six  months  im- 
mediately preceding  the  fihng  of  the  complaint,  unless  the 

13  Civil  Code  (1895),  §  146. 
iComp.  Stats.  (1905),  3171. 
2Comp.  Stats.  (1905),  §§  3166-3168. 
3Comp.  Stats.  (1905),  §  3172. 
4Comp.  Stats.  (1905),  §  4274. 
sComp.  Stats.  (1905),  §  3198. 

[297] 


THE   LAW   OF   MARRIAGE    AND    DIVORCE. 

marriage  was  solemnized  in  the  state,  and  the  plaintiff  shall 
have  resided  therein  from  the  marriage  to  the  fiUng  of  the  com- 
plaint.^ 

Jurisdiction. 

District  court  of  the  county  where  one  of  the  parties  resides.^ 

Service. 

Personal  service  or  by  pubhcation  once  a  week  for  four  con- 
secutive weeks.* 

Evidence. 

Parties  may  be  witnesses,^  but  their  statements  must  be  cor- 
roborated. 

Action  for  impotency  must  be  brought  within  two  years  after 
marriage.  ^° 

Alimony. 

Allowed." 

Remarriage. 

The  party  obtaining  a  decree  may  not  remarry  within  six 
months,  but  the  other  party  must  not  remarry  during  the  pend- 
ency of  appeal.' 


12 


NEVADA. 

Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony  or  infamous  crime. 

Extreme  cruelty.     Cruelty  may  consist  of  continuous  mis- 

eComp.  Stats.  (1905),  §  3173. 

'Comp.  Stats.  (1905),  §  3171. 

sComp.  Stats.  (1905),  §  6649. 

9Comp.  Stats.  (1905),  §  3176. 
loComp.  Stats.  (1905),  §  3202. 
11  Comp.  Stats.  (1905),  §§  3178,  3179,  3183-3192. 
i2Comp.  Stats.  (1905),  §§  3210,  3211. 

[298] 


SYNOPSIS   OF   THE   DIVORCE   STATUTES. 

conduct  which  is  calculated  to  render  the  life  of  the  other 
miserable. 

Wilful  desertion  for  one  year. 

Drunkenness  incapacitating  support  of  family. 

Impotency. 

Wilful  neglect  to  provide  for  one  year.^ 

Grounds  for  annulment  of  marriage. 

Want  of  understanding;  nonage;  fraud.^ 

Consanguinity  and  affinity. 

iMarriages  under  these  circumstances  are  void  without  legal 
process. 

Former  husband  or  wife  living,  if  marriage  was  contracted 
in  the  state,  is  void  without  legal  process.^ 

Nonage. 

Male  18.  Female  IQ^  But  marriages  under  these  circum- 
stances may  be  ratified  by  cohabitation  after  the  parties  have 
arrived  at  legal  age,  and  such  ratification  is  an  absolute  bar  to 
cUvorce  on  this  ground.^ 

Residence. 

Six  months'  residence  is  required.^ 

Jurisdiction. 
District  court.'' 

Service. 

Personal  service  or  by  pubHcation.  If  by  pubUcation,  three 
months  in  succession.* 

iComp.  Laws  (1900),  §  502. 
2Comp.  Laws  (1900),  §  499. 
aComp.  Laws  (1900),  §  498. 
4Comp.  Laws  (1900),  §  483. 
sComp.  Laws  (1900),  §  500. 
oComp.  Laws  (1900),  §  502. 
7Comp.  Laws  (1900),  §  502. 
3Comp.  Laws  (1900),  §  503. 

[299] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

Evidence. 

Testimony  shall  be  taken  same  as  in  other  cases. 
Both  parties  may  testify.^ 

Alimony. 

Allowed.io 

Remarriage. 

Permitted." 

NEW  HAMPSHIRE.  ] 

Grounds  for  absolute  divorce. 

Impotency. 

Extreme  cruelty. 

Conviction  of  crime  punishable  in  the  state  with  imprison- 
ment for  more  than  a  year,  and  actual  imprisonment  under 
such  conviction. 

Adultery  of  either  party. 

Treatment  such  as  to  seriously  injure  health. 

Treatment  such  as  to  seriously  endanger  reason. 

Absence  for  three  years  without  being  heard  of. 

Habitual  drunkenness  for  three  years. 

Joining  any  religious  sect  or  society,  which  professes  to  be- 
lieve the  relation  of  husband  and  wife  unlawful,  and  refusal  to 
cohabit  for  six  months. 

Abandonment  for  three  years. 

Desertion  for  three  years  or  without  the  consent  of  the 
other. 

When  the  husband  has  wilfully  absented  himself  from  the 
wife  for  three  years  together  without  making  suitable  provi- 
sion for  her  support  and  maintenance. 

When  the  wife  of  any  citizen  has  gone  to  reside  beyond  the 
limits  of  the  state,  and  has  remained  absent  and  separate  from 

sComp.  Laws  (1900),  §  506. 
loComp.  Laws  (1900),  §§  505,507. 
Ji  Comp.  Laws  (1900),  §  508. 
[  300  1 


SYNOPSIS   OF   THE    DIVORCE   STATUTES. 

her  husband  for  ten  years  together  wdthout  his  consent,  and 
without  returning  to  claim  her  marriage  rights. 

When  the  wife  of  any  aUen  or  citizen  of  any  other  state,  hv- 
ing  separate,  has  resided  in  the  state  for  three  years  together, 
her  husband  having  left  the  United  States,  with  the  intention 
of  becoming  a  citizen  of  some  foreign  country,  and  not  having 
during  that  period  come  into  the  state  to  claim  his  marital 
rights,  and  not  having  made  suitable  provision  for  his  wife's 
support  and  maintenance.^ 

Sentence  of  death  dissolves  marriage.^ 

Grounds  for  annulment  of  marriage. 

If  doubt  exists  whether  a  marriage  is  void  or  not,  action  may 
be  brought  in  the  supreme  court  to  determine  whether  it  is 
void  or  not.^ 

Consanguinity  and    affinity ;    former   husband  or  wife    living,  if 
married  in  the  state. 
These  marriages  are  void  without  legal  process.^ 

Nonage. 

Male  14.     Female  13.^ 

Residence. 

Actual  residence  for  one  year  next  preceding  the  commence- 
ment of  the  action,  where  both  parties  were  domiciled  witliin 
the  state  when  the  action  was  commenced;  where  the  plain- 
tiff was  domiciled  within  the  state  when  the  action  was  com- 
menced and  the  defendant  was  personally  served  with  process 
within  the  state;  and  where  one  of  the  parties  was  domiciled 
within  the  state  when  the  action  was  commenced,  and  one  or 
the  other  of  them  actually  resided  within  the  state.® 

1  Pub.  Stats.  (1901),  p.  591,  §  5. 

2  Pub.  Stats.  (1901),  p.  786,  §  8. 

3  Pub.  Stats.  (1901),  p.  590,  §  2. 

4  Pub.  Stats.  (1901),  p.  588,  §  3,  p.  590,  §  1. 

5  Pub.  Stats.  (1901)   p.  588,  §  4. 

6  Pub.  Stats.  (1901),  pp.  590,  591,  §  3. 

[  301  ] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 
Evidence. 

All  causes  must  be  in  existence  at  the  time  of  filing  the 
petition^ 

Jurisdiction. 

Supreme  court.* 

Service. 

Personal  service  or  such  service  as  the  court  shall  direct.^ 

Alimony. 

Allowed.  10 
Remarriage. 

Not  forbidden. 

NEW  JERSEY. 

Grounds  for  absolute  divorce. 

Adultery. 

Wilful,  continued,  and  obstinate  desertion  for  two  years. 

Impotency  at  time  of  marriage.^ 

Grounds  for  annulment  of  marriage. 

Former  husband  or  wife  hving;  consanguinity  and  affinity .^ 

Grounds  for  partial  divorce. 

Divorces  from  bed  and  board  forever  or  for  a  limited  period 
may  be  decreed  for  extreme  cruelty.^ 

Nonage. 

Male  21.     Female  18.     These  are  the  ages  under  which  the 
consent  of  parent  or  guardian  is  required."* 

7  Pub.  Stats.  (1901),  p.  591,  §  6. 

8  Pub.  Stats.  (1901),  p.  592,  §  8. 

9  Pub.  Stats.  (1901),  pp.  698,  699,  §§  2,  9. 
10  Pub.  Stats.  (1901),  p.  592,  §§  13-18. 

1  Laws  of  1902,  p.  502. 

2  Laws  of  1902,  p.  502. 

3  Laws  of  1902,  p.  503. 

4  Laws  of  1902,  p.  491. 

[  302  ] 


SYNOPSIS   OF   THE    DIVORCE    STATUTES. 

Residence. 

The  plaintiff  must  be  a  resident  at  the  commencement  of 
action,  and  in  most  cases  must  have  had  two  years'  residence.^ 

Jurisdiction. 

Court  of  chancery.® 

Service. 

Personal  service  or  by  publication.  If  by  publication,  once 
a  week  for  four  successive  weeks  witliin  twenty  days  after  the 
date  of  the  order.^ 

Trial. 

A  trial  by  jury  may  be  ordered.* 

Alimony. 

Allowed.^ 

Remarriage. 

Not  forbidden. 


NEW  MEXICO. 
Grounds  for  absolute  divorce. 

Adultery. 

Impotency. 

Cruel  and  inhuman  treatment. 

Wife  at  time  of  marriage  pregnant  by  another  man  than  her 
husband. 

Abandonment. 

Con\'iction  of  a  felony. 

Habitual  drunkenness  on  the  part  of  the  husband  or  wife. 

Neglect  upon  the  part  of  the  husband  to  support  the  wife.^ 

5  Laws  of  1902,  pp.  503,  504. 

6  Laws  of  1902,  p.  503. 

7  Laws  of  1903,  p.  122. 

8  Laws  of  1902,  p.  507. 

9  Laws  of  1902,  pp.  507,  508. 
1  Laws  of  1901,  p.  116,  §22. 

[  303  ] 


THE    LAW    OF   MARRIAGE   AND    DIVORCE. 

Grounds  for  annulment  of  marriage. 

Consanguinity;  nonage.' 

Force  and  fraud;  former  husband  or  wife  living  at  time  of 
subsequent  marriage;  insanity. 

There  is  no  statutory  provision  for  annuhnent,  but  marriage 
is  contemplated  by  the  law  as  a  civil  contract  for  which  the 
consent  of  parties  capable  in  law  of  contracting  is  essential.^ 

No  persons  are  permitted  to  join  persons  in  marriage  unless 
they  ascertain  that  they  are  capable  of  contracting  marriage.^ 

Nonage. 

Male  18.     Female  15.^ 

Besidence. 

One  year's  residence  is  required.® 

Jurisdiction. 
District  court.^ 

Service. 

Personal  service,  or  by  pubUcation  four  successive  weeks,  or 
by  mail,  or  by  such  other  means  as  the  court  may  direct.  If 
by  pubUcation,  the  last  publication  shall  be  before  the  time 
for  the  defendant  to  appear.^ 

Alimony. 

Allowed.  Suit  may  be  brought  for  ahmony  without  asking 
for  divorce.^ 

Remarriage. 
Not  forbidden. 

2Comp.  Stats.  (1897),  §  1430. 
3Comp.  Stats.  (1897),  §  1415. 
4Comp.  Stats.  (1897),  §  1417. 
sComp.  Laws  (1897),  §  1426. 

6  Laws  of  1901,  p.  117,  §25. 

7  Laws  of  1901,  p.  116,  §22. 
sComp.  Laws  (1897),  §  1433. 

8  Laws  of  1901,  p.  116,  §   23  et  seq. 

[304] 


SYNOPSIS    OF  THE   DIVORCE   STATUTES. 

NEW  YORK. 
Grounds  for  absolute  divorce. 

Adultery,  where  both  parties  were  residents  of  the  state  when 
the  offence  was  committed;  where  the  parties  were  married 
within  the  state;  where  the  plaintiff  was  a  resident  of  the  state 
when  the  offence  was  committed,  and  was  a  resident  thereof 
when  the  action  was  commenced;  or  where  the  offence  was 
committed  within  the  state  and  the  injured  party,  when  the 
action  was  commenced,  was  a  resident  of  the  state.  ^  The  ac- 
tual inhabitancy  of  the  state  by  the  wife  makes  her  a  resident 
for  the  purpose  of  the  action. 

Grounds  for  annulment  of  marriage. 

Force,  duress,  or  fraud;  former  husband  or  wife  living  but 
without  knowledge  of  spouse;  incurable  physical  incapacity; 
want  of  understancUng  or  under  age  of  consent,  unless  the  par- 
ties have  cohabited  after  recovery.^ 

Grounds  for  partial  divorce. 

Separation  is  granted  by  a  judgment  permitting  the  parties 
to  live  separate  from  each  other,  and  compelling  the  husband 
to  support  the  wife  and  children: 

For  cruel  and  inhuman  treatment  of  the  plaintiff  by  the  de- 
fendant. 

Such  conduct  on  the  part  of  the  defendant  towards  the 
plaintiff,  as  may  render  it  unsafe  and  improper  for  the  former 
to  cohabit  with  the  latter. 

The  abandonment  of  the  plaintiff  by  the  defendant. 

Where  the  vaie  is  the  plaintiff,  the  neglect  or  the  refusal  of 
the  defendant  to  provide  for  her. 

This  action  may  be  maintained  where  both  parties  are  resi- 
dents of  the  state  when  the  action  is  commenced;  where  the 
parties  were  married  within  the  state  and  the  plaintiff  is  a 
resident  thereof  when  the  action  is  commenced;  or  where  the 

1  Birdseye's  Stats.  &  Codes  (1901),  p.  995. 

2  Birdseye's  Stats.  &  Codes  (1901),  pp.  1041,  1042. 

20  [  305  ] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE. 

parties,  having  been  married  without  the  state,  have  become 
residents  of  the  state,  and  have  continued  to  be  residents 
thereof  at  least  one  year,  and  the  plaintiff  is  such  a  resident 
when  the  action  is  commenced.^ 

Incestuous  marriages. 

These  marriages  are  void  without  legal  process.'* 

Nonage. 

Male  18.  Female  18.^  But  these  marriages  may  be  ratified 
by  cohabitation  after  arriving  at  lawful  age,  and  such  cohab- 
itation is  an  absolute  bar  to  an  action  for  annulment.® 

Jurisdiction. 
Supreme  court. 

The  case  may  be  tried  by  the  court,  a  referee,  or  a  jury.'' 
The  sitting  of  the  court  may  be  private.* 

Service. 

Personal  service  or  by  publication  once  a  week  for  six  con- 
secutive weeks  in  two  newspapers. 

The  defendant  has  twenty  days  to  answer  after  the  date  of 
the  last  pubUcation.'^ 

Evidence. 

No  divorce  will  be  granted  if  both  parties  have  been  guilty 
of  adultery. 

The  co-respondent  may  defend  as  to  the  charge  of  adultery. 

Action  must  be  commenced  witliin  five  years  after  discovery 
of  adultery.^'' 

3  Birdseye's  Stats.  &  Codes  (1901),  p.  998. 

4  Birdseye's  Stats.  &  Codes  (1901),  p.  1041,  §  2. 

5  Birdseye's  Stats.  &  Codes  (1901),  p.  1042. 
8  Birdseye's  Stats.  &  Codes  (1901),  p.  993. 

7  Birdseye's  Stats.  &  Codes  (1901),  p.  996. 

8  Birdseye's  Stats.  &  Codes  (1901),  p.  882. 

9  Birdseye's  Stats.  &  Codes  (1901),  p.  1001,  §  33,  pp.  16-18,  §§  26-28, 
p.  2644,  §  3. 

10  Birdseye's  Stats.  &  Codes  (1901),  p.  996. 

[306] 


SYNOPSIS   OF   THE   DIVORCE  STATUTES. 
Alimony. 

Allowed." 

Remarriage. 

Defendant  may  remarry  when  five  years  have  elapsed  from 
the  time  of  the  decree,  and  the  defendant's  conduct  has  been 
uniformly  good  to  the  satisfaction  of  the  court.^^ 

NORTH  CAROLINA. 

Grounds  for  absolute  divorce. 

Adultery. 

All  grounds  except  adultery  repealed  March  6,  1905,  but  not 
to  affect  pending  cases. 

Impotency. 

If  the  wife  at  the  time  of  the  marriage  be  pregnant,  and  the 
husband  be  ignorant  of  the  fact  of  such  pregnancy,  and  be  not 
the  father  of  the  child  with  which  the  wife  is  pregnant  at  the 
time  of  the  marriage.^ 

If  the  husband  be  indicted  for  felony  and  flee  the  state  and 
fail  to  return  in  one  year  from  the  time  the  incUctment  was 
found.^ 

If  the  wife  shall  refuse  for  twelve  months  to  allow  the  hus- 
band to  have  sexual  intercourse  with  her,  he  having  never  had 
such  intercourse  with  her.^ 

If  the  husband  or  wife  shall  wilfully  and  without  cause  aban- 
don the  wife  or  husband,  and  hve  separate  and  apart  for  two 
years,  the  abandoned  spouse  shall  be  entitled  to  a  divorce  from 
the  bonds  of  matrimony,  but  the  abandoning  spouse  shall  not 
remarry  within  five  years  from  the  date  of  rendering  final  judg- 
ment in  the  action  for  divorce.  This  pro\'ision  is  not  appH- 
cable  to  separations  occurring  after  January  1,  1903,^ 

"  Birdseye's  Stat.  &  Codes  (1901),  p.  999,  §  28  et  seq.;  Laws  of  1904,  p.  885. 
12  Birdseye's  Stats.  &  Codes  (1901),  p.  998. 
iCode  (1883),  §  1285. 

2  Laws  of  1887,  p.  190,  c.  100. 

3  Laws  of  1889,  p.  422,  c.  442. 

4  Pub.  Laws  of  1903,  p.  846,  c.  490. 

[307] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

Grounds  for  annulment  of  marriage. 

All  void  marriages  may  be  declared  void  during  the  lifetime 
of  the  parties.  Marriages  void  by  miscegenation  may  be  so 
declared  at  any  time.^ 

Grounds  for  partial  divorce. 

The  superior  court  may  grant  a  divorce  from  bed  and  board 
on  application  of  the  party  injured,  made  as  by  law  provided, 
in  the  following  cases: 

If  either  party  shall  abandon  his  or  her  family,  or  shall  ma- 
liciously turn  the  other  out  of  doors,  or  shall  by  cruel  and  bar- 
barous treatment  endanger  the  Ufe  of  the  other,  or  shall  offer 
such  indignities  to  the  person  of  the  other,  as  to  render  his  or 
her  condition  intolerable,  and  life  burdensome,  or  shall  become 
an  habitual  drunkard.* 


Nonage. 
Male  16.    Female  14. 


Residence. 

It  must  be  alleged  and  proven  that  the  complainant  has 
been  a  hcna  fide  resident  of  the  state  for  two  years  next  pre- 
ceding the  commencement  of  the  action.^ 

Jurisdiction. 

Superior  court.^ 

Service. 

Personal  or  by  publication.  If  by  publication,  not  less  than 
once  a  week  for  six  weeks.^'' 

6  Code  (1883),  §§1283,  1284. 

6  Code  (1883,  §  1286. 

7  Code  (1883),  §1809. 

8  Code  (1883),  §1287. 

9  Code  (1883),  §1282. 

10  Code  (1883),  §§214,  218,  219. 
[308] 


SYNOPSIS   OF   THE   DIVORCE  STATUTES. 

Evidence. 

The  parties  are  not  competent  witnesses,  except  to  the  mar- 
riage," and  except  as  to  refusal  of  intercourse.^^ 

Trial  by  jury.^^ 

The  plaintiff  must  have  known  the  cause  of  action  six  months 
before  bringing  suit.^'* 

It  shall  be  the  duty  of  the  judge  presiding  at  the  trial  in 
cases  of  abandonment  to  inquire  carefully  into  the  facts  and 
circumstances  of  the  particular  case,  and,  if  he  shall  be  of  the 
opinion  that  the  divorce  for  any  cause  should  not  be  granted, 
he  may,  in  the  exercise  of  his  discretion,  decUne  to  grant  the 
divorce  and  set  aside  the  verdict.^^ 


Alimony. 

AUowed.^^ 


Remarriage. 

Permitted.^'' 


NORTH  DAKOTA. 

Grounds  for  absolute  divorce. 

Adultery. 

Extreme  cruelty  or  grievous  mental  suffering. 
Wilful  desertion  for  one  year. 
Wilful  neglect  for  one  year. 

Habitual  intemperance  or  indulgence  in  opium  or  like  drug 
for  one  year. 

Conviction  of  felony.^ 

"Code  (1883),  §§588,  1288. 

12  Laws  of  1889,  p.  422,  c.  442. 

13  Code  (1883),  §1288. 
"Code  (1883),  §  1287. 

15  Pub.  Laws  of  1903,  p.  846,  c.  490. 

16  Code  (1883),  §§  1290  et  seq.,  1844, 1845;  Pub.  Laws  of  1893,  p.  114,  c.  153. 
"Code  (1883),  §1295. 

1  Laws  of  1901,  pp.  81,  82. 

[309] 


THE   LAW  OF  MARRIAGE   AND   DIVORCE. 

Grounds  for  annulment  of  marriage. 

Under  age  of  consent.  (Action  must  be  brought  within  four 
years  after  reacliing  age  of  consent.) 

Force  or  fraud.  (Action  must  be  brought  within  four  years 
of  marriage.) 

Unsound  mind.     (Action  must  be  brought  during  Hfe.) 

Former  husband  or  wife  hving.  (Action  must  be  brought 
during  hfe.) 

Incurable  impotency.  (Action  must  be  brought  within  four 
years  from  time  of  marriage.^) 

Grounds  for  partial  divorce. 

There  is  no  provision  in  the  statute  for  divorce  from  bed  and 
board,  but  the  court  may,  in  its  discretion,  though  dismissing 
a  divorce,  grant  the  wife  separate  maintenance. 


3 


Nonage. 

Male  16.  Female  13.  But  these  marriages  may  be  ratified 
by  cohabiting  after  arriving  at  lawful  age  and  such  ratification 
is  an  absolute  bar  to  divorce.^ 

Actions  for  annulment  on  the  ground  of  nonage  must  be 
brought  within  four  years  after  arriving  at  age,  or  by  the  par- 
ents or  guardian  before  arriving  at  lawful  age.^ 

Residence. 

A  divorce  will  not  be  granted  unless  the  plaintiff  has,  in  good 
faith,  been  a  resident  of  the  state  for  one  year  next  preceding 
the  commencement  of  the  action.*^ 


Jurisdiction. 

District  court.^ 

2  Rev.  Code  (1895),  §§  2731,  2732. 

3  Rev.  Code  (1895),  §2758. 
*  Rev.  Code  (1895),  §  2721. 
5  Rev.  Code  (1895),  §  2732. 

0  Laws  of  1899,  p.  94. 

1  Rev.  Code  (1895),  §  2755. 

[310] 


SYNOPSIS   01'   TriE   blVORCE   Si'ATUTEa. 

Service. 

Personal  service  or  by  publication.    If  by  publication,  once 

a  week  for  six  consecutive  weeks. 

Personal  service  out  of  the  state  is  equivalent  to  publication. 

Service  is  complete  thirty-six  days  after  the  first  pubUca- 
tion,  or  fifteen  days  after  personal  service  out  of  the  state.« 

Evidence. 

A  divorce  will  be  denied  when  there  is  an  unreasonable  lapse 
of  time  before  the  commencement  of  the  action.^ 
No  divorce  can  be  granted  by  default. 
Either  party  may  testify  but  must  be  corroborated.^" 

Alimony. 
Allowed." 

Remarriage. 

Permitted,  but  not  till  three  months  after  decrec^^ 

OHIO. 

Grounds  for  absolute  divorce. 

Either  party  having  a  husband  or  wife  Hving  at  the  time  of 

marriage. 
Wilful  absence  of  either  party  from  the  other  for  three  years. 

Adultery. 

Impotency. 

Extreme  cruelty. 

Fraudulent  contract. 

Gross  neglect  of  duty. 

Habitual  drunkenness  for  three  years. 

Imprisonment  of  either  party  in  a  penitentiary  under  sen- 
tence thereto,  but  the  suit  must  be  conmaenced  during  the 
imprisonment. 

8  Rev.  Code  (1895),  §§  5252,  5254. 

9  Rev.  Code  (1895),  §2753. 

10  Rev.  Code  (1895),  §  2757. 

11  Laws  of  1899,  p.  95. 
i2Lawsof  1901,p.  81. 

[311] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

The  procurement  of  a  divorce  without  the  state  by  a  husband 
or  wife,  by  virtue  of  which  the  party  who  procured  it  is  re- 
leased from  the  obHgations  of  the  marriage,  while  the  same 
remain  binding  upon  the  other  party.^ 

Nonage. 

Male  18.    Female  I6.2 

Residence. 

The  plaintiff  must  be  a  resident  of  the  state  at  least  one  year 
prior  to  the  fihng  of  the  petition,  except  in  actions  for  aUmony 
alone,  and  must  be  a  bona  fide  resident  of  the  county  where 
the  action  is  brought,  or  the  cause  of  action  arose.^ 

Jurisdiction. 

Court  of  common  pleas  ^  and  the  probate  courts  in  certain 
counties.^ 

Service. 

Personal  service  or  by  publication,  but  no  cause  will  be  heard 
until  the  expiration  of  six  weeks  after  first  publication.^ 

Evidence. 

Either  party  may  testify,  but  evidence  must  be  corrobo- 
rated.® 

Alimony. 

The  court  may  allow  alimony  to  either  husband  or  wife  out 
of  the  property  of  the  other,  and  for  adultery,  gross  neglect, 
abandonment,  ill  treatment,  habitual  drunkenness,  or  impris- 
onment in  the  penitentiary. 

The  wife  may  bring  an  action  for  alimony  alone.^ 

1  Bates's  Anno.  Stats.  (1904),  §  5689. 

2  Bates's  Anno.  Stats.  (1904),  §  6384. 

3  Bates's  Anno.  Stats.  (1904),  §  5690. 

4  Bates's  Anno.  Stats.  (1904),  §§5689  (525-1). 

5  Bates's  Anno.  Stats.  (1904),  §§  5692-5694. 

6  Bates's  Anno.  Stats.  (1904),  §  5697. 

7  Bates's  Anno.  Stats.  (1904),  §§  5699-5703,  5705. 

[312] 


SYNOPSIS   OF   THE   DIVORCE   STATUTES. 


Remarriage. 

Not  forbidden. 


OKLAHOMA. 

Grounds  for  absolute  divorce. 

Either  of  the  parties  having  a  former  husband  or  wife  liv- 
ing at  the  time  of  the  marriage. 

Abandonment  for  one  year. 

Adultery. 

Impotency. 

The  wife  at  the  time  of  the  marriage  pregnant  by  another 
than  her  husband. 

Extreme  cruelty. 

Fraudulent  contract. 

Habitual  drunkenness. 

Gross  neglect  of  duty. 

Conviction  of  a  felony  and  imprisonment  in  the  penitentiary 
subsequent  to  marriage.^ 

Grounds  for  annulment  of  marriage. 

Want  of  age  or  understanding.^ 
Consanguinity. 

Marriages  under  these  circumstances  are  void  without  legal 
process,^ 

Residence. 

A  bona  fide  residence  in  the  territory  for  one  year  immedi- 
ately preceding  the  fihng  of  the  petition  is  necesssary."* 

Nonage. 
Male  18.    Female  15.^ 

1  Wilson's  Anno.  Stats.  (1903),  §4832. 

2  Wilson's  Anno.  Stats.  (1903),  §  4843. 

3  Wilson's  Anno.  Stats.  (1903),  §3483. 

4  Wilson's  Anno.  Stats.  (1903),  §4833,  note. 

5  Wilson's  Anno.  Stats.  (1903),  §  3484. 

[313] 


THE  LAW  OF   MARRIAGE  AND  DIVORCE. 

Jurisdiction. 
District  court.^ 

Service. 

Personal  service  or  by  publication  three  consecutive  weeks. 

Personal  service  outside  of  state  is  equivalent  to  publica- 
tion. 

The  defendant  has  forty-one  days  to  answer  in  from  time  of 
first  pubUcation.'^ 

Evidence. 

The  petition  must  be  verified.* 

Alimony. 

Alimony  may  be  allowed  pending  proceedings  or  upon 
decree  of  divorce.^ 

Remarriage. 

Permitted,  but  neither  party  may  remarry  within  six  months 
after  decree,  and,  if  an  appeal  is  taken,  not  until  after  thirty 
days  from  the  entry  of  final  judgment  thereon.^" 

OREGON. 

Grounds  for  absolute  divorce, 

Impotency  existing  at  time  of  marriage  and  continuing 
until  commencement  of  suit. 

Adultery. 

Conviction  of  felony. 

Habitual  gross  drunkenness  contracted  since  the  marriage 
and  continuing  for  one  year  before  suit. 

Wilful  desertion  for  the  period  of  one  year. 

Cruel  and  inhuman  treatment  or  personal  indignities  render- 
ing fife  burdensome.^ 

6  Wilson's  Anno.  Stats.  (1903),  §4832. 

7  Wilson's  Anno.  Stats.  (1903),  §§  4834,  4276-4278. 

8  Wilson's  Anno.  Stats.  (1903),  §4834. 

9  Wilson's  Anno.  Stats.  (1903),  §§  4837,  4839. 
10  Wilson's  Anno.  Stats.  (1903),  §4840. 

1  Bel.  &  Cot.  Codes  (1902),  §  507. 
[314] 


SYNOPSIS    OF  THE   DIVORCE   STATUTES. 

Grrounds  for  annulment  of  marriage. 
Force;  fraud;  want  of  age  or.  understanding.^ 

Consanguinity  and  aflSnity ;  former  husband  or  wife  living ;  mis- 
cegenation. 
These  marriages  are  void  without  legal  process.^ 

Nonage. 

Male  18.  Female  15.'*  But  these  marriages  may  be  ratified 
by  parties  after  becoming  competent.^ 

Residence. 

The  plaintiff  must  be  an  inhabitant  of  the  state  at  the  com- 
mencement of  the  suit,  and  for  one  year  prior  thereto,  which 
residence  shall  be  sufficient  to  give  the  court  jurisdiction,  with- 
out regard  to  the  place  where  the  marriage  was  solemnized,  or 
the  cause  of  suit  arose.® 

Jurisdiction. 

Circuit  court.'^  The  suit  may  be  commenced  and  tried  in 
any  county  of  the  state  in  which  either  party  resides.* 

Service. 

Personal  service  or  by  pubfication.^  If  by  publication,  once 
a  week  for  six  weeks. 

Personal  service  out  of  the  state  is  equivalent  to  pubfication. 

Time  to  answer  is  on  or  before  the  last  day  prescribed  by  the 
order  of  pubfication.^*^ 

Evidence. 

Suits  for  divorce  because  of  adultery  or  conviction  of  a  fel- 

2  Bel.  &  Cot.  Codes  (1902),  §  503. 

3  Bel.  &  Cot.  Codes  (1902),  §§  502,  504. 

4  Bel.  &  Cot.  Codes  (1902),  §5216. 

5  Bel.  &  Cot.  Codes  (1902),  §  505. 

6  Bel.  &  Cot.  Codes  (1902),  §  509. 

7  Const.  Art.  VII,  §  9. 

8  Bel.  &  Cot.  Codes  (1902),  §  397. 

9  Bel.  &  Cot.  Codes  (1902),  §  400. 
10  Bel.  &  Cot.  Codes  (1902),  §  57. 

[315] 


THE   LAW  OF   MARRIAGE  AND   DIVORCE. 

ony  must  be  commenced  within  one  year  after  the  discovery 
of  the  adultery  or  after  the  conviction  of  the  crime." 

Alimony. 

AUowed.^^ 

Remarriage. 

Prohibited,  until  an  appeal  is  taken,  or  until  the  expiration 
of  six  months  which  is  allowed  within  which  to  take  an  appeal.^^ 

PENNSYLVANIA. 
Grounds  for  absolute  divorce. 

Incapacity  of  procreation. 

Former  marriage  still  subsisting. 

Adultery. 

Wilful  and  maUcious  desertion  on  the  part  of  either  the  hus- 
band or  wife,  and  absence  from  the  habitation  of  the  other, 
without  a  reasonable  cause,  for  and  during  the  term  and  space 
of  two  years. 

Personal  abuse,  or  such  conduct  on  the  part  of  either  hus- 
band or  wife  as  to  render  the  condition  of  the  other  party  in- 
tolerable and  Ufe  burdensome. 

Conviction  of  crime  and  sentence  therefor  for  any  term  ex- 
ceeding two  years,  provided  that  appUcation  for  divorce  be 
made  by  the  husband  or  wife  of  the  party  convicted  and  sen- 
tenced.^ 

Hopeless  insanity.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity  and  affinity. 

Fraud,  force,  or  coercion,  if  not  subsequently  confirmed  by 
voluntary  cohabitation.^ 

"  Bel.  &  Cot.  Codes  (1902),  §  510. 

12  Bel.  &  Cot.  Codes  (1902),  §§  511  e<  seq. 

13  Bel.  &  Cot.  Codes  (1902),  §  515. 

1  Brightly's  Pur.  Dig.  (1894),  pp.  682-684,  §§  1-8;  Brightly's  Dig.  (1903), 
pp.  212,  213,  §§  1-3. 

2  Laws  of  1905,  pp.  211,  212. 

3  Brightly's  Pur.  Dig.  (1894),  pp.  683,  684,  §§  2,  7. 

[316] 


SYNOPSIS   OF   THE   DIVORCE   STATUTES. 

Grounds  for  partial  divorce. 

Divorce  may  be  decreed  from  bed  and  board  on  complaint 
of  the  wife  for  barbarous  treatment  or  adultery  by  the  husband, 
in  which  case  alimony  is  allowed  to  the  wife  not  exceeding  the 
third  part  of  the  husband's  income.^ 

Residenee. 

An  appUcant  for  divorce  must  be  a  citizen  and  have  resided 
in  the  state  one  year  prior  to  filing  the  libel.^ 

Jurisdiction. 

Court  of  common  pleas.® 

Service. 

Personal  service  or  by  pubUcation.  If  by  pubUcation,  four 
weeks  in  succession  prior  to  the  first  day  of  the  next  term  of 
court  after  thirty  days  from  date  of  subpoena.^ 

Evidence. 

Either  party  may  testify  where  the  summons  was  served  per- 
sonally, or  where  the  defendant  appears.^ 

The  court  may  appoint  a  master  to  take  the  testimony  and 
report  back  to  the  court.^ 

For  desertion,  the  injured  party  may  apply  for  a  divorce  in 
six  months  after  the  cause  arose,  but  no  cUvorce  will  be  decreed 
until  after  two  years  have  expired  from  the  date  of  such  de- 
sertion.^" 

Alimony. 

Allowed." 

i  Brightly 's  Pur.  Dig.  (1894),  pp.  688,  689,  §§  31  e<  seq. 

5  Brightly's  Pur.  Dig.  (1894),  p.  683,  §  3;  Brightly's  Dig.  (1903),  pp.  212, 
213,  §3. 

6  Brightly's  Dig.  (1903),  p.  212,  §  3. 
^  Laws  of  1905,  pp.  293,  294. 

8  Brightly's  Pur.  Dig.  (1894),  p.  817,  §30. 

9  Brightly's  Dig.  (1903),  p.  213,  §  5. 

10  Brightly's  Pur.  Dig.  (1894),  p.  683,  §  5. 

11  Brightly's  Pur.  Dig.  (1894),  pp.  689,  690,  §§  32-34;  Laws  of  1905, 
pp.  211,  212. 

[  317  ] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 


Remarriage. 
Permitted;  except  with  co-respondent. 


PHILIPPINES. 
Grounds  for  absolute  divorce. 

There  seems  to  be  no  absolute  divorce.* 


Grounds  for  annulment  of  marriage. 

All  void  and  voidable  marriages  may  be  annulled  by  the  civil 
tribunals.^ 

Grounds  for  partial  divorce  or  suspension  of  the  life  in  common. 

Adultery  of  the  wife;  adultery  of  the  husband  where  pubhc 
scandal  or  disgrace  of  wife  results. 

Personal  violence  or  grave  insults. 

Violence  to  induce  change  of  wife's  rehgion. 

Proposal  of  husband  to  prostitute  wife. 

Attempt  of  either  to  corrupt  sons  or  prostitute  daughters. 

Condemnation  to  perpetual  chains  or  hard  labor.^ 

Nonage. 

Male  14.  Female  12.  But  these  marriages  are  ratified  by 
living  together  one  day  after  puberty  or  if  the  woman  becomes 
pregnant.'* 

Jurisdiction. 

Civil  tribunals.^ 

Alimony. 

Allowed.® 

12  Brightly 's  Pur.  Dig.  (1894),  pp.  687,  688,  §§20.  29. 

1  CivU  Code  (1899),  Art.  104. 

2  Civil  Code  (1899),  Art.  103.     See  "Marriage  Laws,"  swpra.  p.  193. 

3  Civil  Code  (1899),  art.  105. 

4  Civil  Code  (1899),  Art.  83. 

5  Civil  Code  (1899),  Art.  103. 

6  Civil  Code  (1899),  Arts.  68-4. 

[318] 


SYNOPSIS    OF   THE    DIVORCE   STATUTES. 

PORTO  RICO. 

Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony  wliich  involves  loss  of  civil  rights. 

Habitual  drunkenness  or  continued  and  excessive  use  of 
opium  or  other  drugs. 

Cruel  treatment  or  grave  injury. 

Abandonment  for  more  than  one  year. 

Impotency  occurred  after  marriage. 

Attempt  to  corrupt  sons  or  prostitute  daughters. 

Proposal  to  prostitute  wife.^ 

Grounds  for  annulment  of  marriage. 

Previous  marriage  undissolved;  mental  unsoundness;  want  of 
age;  want  of  consent  of  parent  or  guardian;  physical  incom- 
petency; want  of  three  hundred  and  one  days  expired,  or  of 
birth  of  cliild  since  dissolution  of  former  marriage  of  woman; 
want  of  approval  of  accounts  of  tutor  or  his  descendant  marry- 
ing ward;^  procurement  of  marriage  by  duress,  violence,  or  in- 
timidation.^ 

Consanguinity  and  affinity. 

Marriage  cannot  be  contracted.^ 
Nonage. 

Male  18.     Female  16.^ 
Residence. 

One  year  immediately  preceding  action,  unless  act  committed 
in  Porto  Rico  or  while  one  party  resided  there. ^ 

Jurisdiction. 

District  court. '^ 

1  Rev.  Stats.  &  Codes  (1892),  pp.  813,  814,  §  164. 

2  Rev.  Stats.  &  Codes  (1902),  p.  805,  §  131. 

3  Rev.  Stats.  &  Codes  (1902),  p.  807,  §  134. 
i  Rev.  Stats.  &  Codes  (1902),  p.  806,  §  132. 

5  Rev.  Stats.  &  Codes  (1902),  p.  805,  §  131. 

6  Rev.  Stats.  &  Codes  (1902),  p.  814,  §  165. 

7  Rev.  Stats.  &  Codes  (1892),  p.  814,  §  165. 

[319] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

Alimony. 
Allowed  pendente  lite.^    On  divorce.® 

Bemarriage. 

Permitted.^" 


RHODE  ISLAND. 

Grounds  for  absolute  divorce. 

Impotency. 

Adultery. 

Extreme  cruelty. 

Wilful  desertion  for  five  years  of  either  of  the  parties,  or  such 
desertion  for  a  shorter  period  of  time  in  the  discretion  of  the 
court. 

Continued  drunkenness. 

The  habitual,  excessive,  and  intemperate  use  of  opium,  mor- 
phine, or  chloral. 

Neglect  and  refusal  for  the  period  of  at  least  one  year  next 
before  the  fiUng  of  the  petition,  on  the  part  of  the  husband, 
to  provide  necessaries  for  the  subsistence  of  the  wife,  the  hus- 
band being  of  sufficient  ability. 

Any  other  gross  misbehavior  and  wickedness,  in  either  of 
the  parties  repugnant  to,  and  in  violation  of,  the  marriage 
covenant.* 

Grounds  for  partial  divorce. 

Divorces  from  bed,  board,  and  further  cohabitation  until  the 
parties  be  reconciled,  may  be  granted  for  any  of  the  causes  for 
which  by  law  a  cUvorce  from  the  bonds  of  marriage  may  be 
decreed,  and  for  such  other  causes  as  may  seem  to  require  the 
same:  provided,  that  petitioner  shall  be  a  domiciled  inhabitant 
of  the  state  and  shall  have  resided  in  the  state  such  length  of 

8  Rev.  Stats.  &  Codes  (1902),  p.  815,  §  168. 

9  Rev.  Stats.  &  Codes  (1902),  p.  816,  §  177. 
w  Rev.  Stats.  &  Codes  (1902),  p.  816,  §  173. 
11  Pub.  Laws  of  1902,  c.  971,  §  1. 

[  320  ] 


SYNOPSIS   OF   THE    DIVORCE   STATUTES. 

time  as  to  the  court  in  its  discretion  shall  seem  to  warrant  the 
exercise  of  the  powers  thus  conferred.  In  case  of  such  divorce 
the  court  may  assign  to  the  petitioner  a  separate  maintenance 
out  of  the  estate  or  property  of  the  husband  or  wife  as  the  case 
may  be,  in  such  manner  and  in  such  amounts  as  it  may  think 
necessary  and  proper.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity  and  affinity.^  But  this  provision  shall  not 
extend  to  or  affect  any  marriage  which  shall  be  solemnized 
among  the  Jews  within  the  degrees  of  affinity  or  consanguinity 
allowed  by  their  religion.^ 

Conviction  of  crime  .^  [Marriages  are  voidable  when  the  party 
is  for  crime  deemed  to  be  civilly  dead,  as  conviction  of  murder 
or  arson.^] 

Signing  and  swearing  to  petition. 

Every  petition  shall  be  signed  and  sworn  to  by  the  peti- 
tioner, if  of  sound  mind  and  of  legal  age  to  consent  to  mar- 
riage; otherwise,  upon  appHcation  to  the  court,  and  after  no- 
tice to  the  party  in  whose  name  the  petition  shall  be  filed,  the 
court  may  allow  such  petition  to  be  signed  and  sworn  to  by  a 
resident  guardian  or  next  friend.® 

Residence. 

No  petition  for  divorce  from  the  bond  of  marriage  shall  be 
granted  unless  the  petitioner  shall  have  been  a  domiciled  in- 
habitant of  the  state  and  have  resided  therein  for  the  period 
of  two  years  next  before  the  preferring  of  such  petition:  -pro- 
vided, that  if  the  defendant  shall  have  been  a  domiciled  inhabi- 
tant of  the  state,  and  shall  have  resided  in  the  state  for  the 
period  of  two  years  next  before  the  preferring  of  such  petition, 

2  Pub.  Laws  of  1902,  c.  971,  §  2. 

3  Gen.  Laws  (1896),  p.  633,  §  1. 

4  Gen.  Laws  (1896),  p.  621,  §  4. 

5  Gen.  Laws  (1896),  p.  1020,  §  36. 

6  Pub.  Laws  of  1902,  c.  971,  §  3. 

21  [  321  ] 


THE    LAW   OF   MARRIAGE    AND    DIVORCE. 

and  shall  be  actually  served  with  process,  the  above  require- 
ments as  to  domicil  and  residence  on  the  part  of  the  petitioner 
shall  be  deemed  to  have  been  satisfied  and  fulfilled/ 

Jurisdiction. 

Supreme  court  in  appellate  division.* 

Service. 

Personal  service  or  by  pubhcation  according  to  rule  or  order 
of  court.^ 

No  person  shall  be  entitled  to  a  divorce  from  the  bonds  of 
marriage  unless  the  defendant  shall,  in  accordance  with  rules 
adopted  by  the  court,  have  been  personally  served  with  proc- 
ess, if,  within  the  state,  or  with  personal  notice  duly  authen- 
ticated, if  out  of  the  state;  or  unless  the  defendant  shall  have 
entered  an  appearance  in  the  cause;  or  unless  it  shall  appear 
to  the  satisfaction  of  the  court  that  the  petitioner  does  not 
know  the  address  nor  the  residence  of  the  defendant,  and  has 
not  been  able  to  ascertain  either  after  reasonable  and  due  in- 
quiry and  search  for  six  months,  in  which  case  the  court,  or, 
in  vacation,  a  judge  thereof  may  authorize  notice  by  pubhca- 
tion of  the  pendency  of  the  petition  for  divorce  to  be  given  in 
the  manner  provided  by  law.^° 

Care  and  custody  of  children. 

The  court  may  regulate  the  custody  and  provide  for  the 
education,  maintenance,  and  support  of  the  children  of  all  per- 
sons by  it  divorced,  or  petitioning  for  a  divorce,  and  of  all 
persons  to  whom  a  separate  maintenance  may  be  granted,  or 
who  may  petition  for  the  same,  and  may,  in  its  discretion, 
make  such  allowance  to  the  wife  out  of  the  estate  of  the  hus- 
band for  the  purpose  of  enabhng  her  to  prosecute  or  defend 
against  any  such  petition  for  divorce  or  separate  maintenance, 

7  Pub.  Laws  of  1902,  c.  971,  §  4. 

8  Gen.  Laws  (1896),  pp.  760,  761,  §§  3,  4. 

9  Gen.  Laws  (1896),  p.  635,  §§  12,  13. 
10  Pub.  Laws  of  1902,  c.  971,  §  6. 

[  322  ] 


SYNOPSIS   OF   THE    DIVORCE   STATUTES. 

in  case  she  had  no  property  of  her  own  available  for  such  pur- 
pose as  it  may  think  reasonable  and  proper;  wliich  allowance 
shall  be  so  far  regarded  as  a  judgment  for  debt,  that  suit  may 
be  brought  or  execution  may  issue  thereon  for  amounts  due 
and  unpaid,  from  time  to  time,  to  be  shown  by  affidavit  of  the 
person  entitled  to  the  same  and  the  attorney  of  record  of  such 
person,  such  execution  to  run  against  the  goods  and  chattels 
of  the  husband,  and  for  want  thereof  against  his  body,  and  the 
court  may  make  all  necessary  orders  and  decrees  concerning  the 
same,  and  at  any  time  may  alter,  amend,  and  annul  the  same 
for  sufficient  cause,  after  notice  to  the  parties  interested 
therein.  ^^ 

Evidence. 

No  divorce  from  the  bonds  of  marriage  shall  be  granted  solely 
upon  default;  nor  solely  upon  admissions  by  pleacUngs;  nor 
except  upon  trial  before  the  court  in  open  session;  nor  shall 
such  divorce  be  granted  where  the  court  is  satisfied  that  there 
has  been  any  collusion  or  corrupt  conduct  by  the  parties  or 
either  of  them,  in  regard  to  the  proceedings  to  obtain  the  same.^^ 

Alimony. 

Allowed.^^ 

Remarriage. 

After  final  decree  for  divorce  from  the  bond  of  marriage, 
either  party  may  marry  again;  but  no  decree  for  divorce  shall 
become  final  and  operative  until  six  months  after  the  trial  and 
decision.^^ 

SOUTH  CAROLINA. 

Divorces  are  not  allowed. 

11  Pub.  Laws  of  1902,  c.  971,  §  5. 

12  Pub.  Laws  of  1902,  c.  971,  §  6. 

13  Pub.  Laws  of  1902,  c.  971,  §  5. 
"  Pub.  Laws  of  1902,  c.  971,  §  6. 

[  323  ] 


THE    LAW   OF   MARRIAGE   AND    DIVORCE. 

Grounds  for  annulment  of  marriage. 

Idiocy;  lunacy;  consanguinity;  ^^  want  of  consent;  any  cause 
showing  that  at  the  time  that  the  marriage  contract  was  made, 
it  was  not  a  contract;  ^^  former  husband  or  wife  living. ^^ 

Jurisdiction. 
Court  of  coEomon  pleas.^* 

SOUTH  DAKOTA. 

Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  felony. 

Extreme  cruelty. 

Wilful  desertion  for  one  year. 

Habitual  intemperance  for  one  year. 

Wilful  neglect  for  one  year.^ 

Grounds  for  annulment  of  marriage. 

That  party  seeking  annulment  was  under  age  of  consent; 
that  a  former  marriage  was  in  force;  unsoundness  of  mind; 
fraud;  force;  impotency.^ 

But  marriages  induced  by  fraud  or  force  or  in  which  either 
party  was  under  age  or  of  unsound  mind  may  be  ratified  by 
cohabitation  at  any  time  after  the  incompetency  has  been  re- 
moved. 

Grounds  for  partial  divorce. 

Though  a  divorce  may  be  denied,  the  court  may,  in  its  dis- 
cretion, compel  the  husband  to  support  the  wife.^ 

Consanguinity  and  affinity  ;  former  husband  or  wife  living. 
These  marriages  are  void  without  legal  process.'* 

15  Civil  Code  (1902),  §2658. 

16  Civil  Code  (1902),  §2660. 
"Civil  Code  (1902),  §2661. 
18  Civil  Code  (1902),  §2660. 

1  Civil  Code  (1903),  §§  67,  73. 

2  Civil  Code  (1903),  §61. 

3  Civil  Code  (1903),  §89. 

4  Civil  Code  (1903),  §§  38,  40. 

[324] 


SYNOPSIS   OF  THE   DIVORCE   STATUTES. 

Nonage. 
Male  18.     Female  15.^ 

Residence. 

Six  months'  residence  required,  or,  if  defendant  is  a  non- 
resident, one  year,  unless  personal  service  has  been  made.® 

Jurisdiction, 

Circuit  court.^ 
Service. 

Personal  service  or  by  pubUcation  of  not  less  than  once  a 
week  for  sLx  consecutive  weeks. 

When  summons  is  served  by  pubHcation,  the  defendant  may 
be  allowed  to  defend  within  one  year  after  notice  of  judgment, 
and  mthin  seven  years  after  it  has  been  rendered.* 

Evidence. 

Both  parties  may  testify  but  their  evidence  must  be  corrob- 
orated.^ 

Actions  because  of  nonage  must  be  brought  within  four  years 
after  arriving  at  the  age  of  consent. 

In  cases  of  insanity,  force,  fraud,  and  incapacity,  actions 
must  be  brought  within  four  years  of  date  of  discovery. 

Actions  on  the  ground  of  former  husband  or  wife  Uving  may 
be  brought  during  the  hfe  of  either  party. ^" 

Alimony. 

Allowed." 

Remarriage. 

The  plaintiff  may  remarry  at  any  time. 

The  party  guilty  of  adultery  may  remarry  only  with  plaintiff 
during  Ms  or  her  life.^^ 

5  Civil  Code  (1903),  §36. 

eCivU  Code  (1903),  §86. 

7CivU  Code  (1903),  §66. 

8  Code  of  Ci\Tl  Proc.  (1903),  §§  110,  112. 

9CivU  Code  (1903),  §88. 

10  Civil  Code  (1903),  §62. 

11  CivU  Code  (1903),  §§  90,  93. 

12  Civil  Code  (1903),  §  83. 

[325] 


THE   LAW  OF   MARRIAGE   AND   DIVORCE. 

TENNESSEE. 
Grounds  for  absolute  divorce. 

Adultery. 

Conviction  of  infamous  crime  or  felony. 

Attempting  the  life  of  either  by  poison  or  other  means  show- 
ing mahce. 

Wilful  desertion  or  absence  without  reasonable  cause  for  two 
years. 

Where  the  wife  refuses  for  two  years  to  live  in  the  state  with 
the  husband. 

Habitual  drunkenness  contracted  after  marriage. 

Former  husband  or  wife  living.  [  A  second  marriage  is  valid 
if  either  party  has  been  absent  for  five  years  and  is  not  known 
by  the  other  party  to  be  living,  the  first  marriage  being  re- 
garded as  dissolved  ].^ 

Impotency. 

Insanity. 

Wilful  neglect  for  two  years. 

Pregnancy  by  other  than  husband.^ 

Grounds  for  divorce  from  bed  and  board  or  from  bonds  of  matri- 
mony. 

That  the  husband  is  guilty  of  such  cruel  and  inhuman  treat- 
ment as  renders  it  unsafe  and  improper  for  the  wife  to  cohabit 
with  him  and  be  under  his  dominion  and  control. 

That  he  has  offered  such  indignities  to  her  person  as  to  ren- 
der her  condition  intolerable. 

That  he  has  abandoned  her,  or  turned  her  out  of  doors  or 
neglected  to  provide  for  her.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity  and   affinity;    force;    fraud;    pregnancy    of 

1  Code  (1896),  §  4188. 

2  Code  (1896),  §  4201. 

3  Code  (1896),  §4202. 

[  326  ] 


SYNOPSIS   OF  THE    DIVORCE   STATUTES. 

woman  at  time  of  marriage ;  miscegenation  to  the  third  gen- 
eration of  colored  people  inclusive.^ 

Grounds  for  partial  divorce. 

Limited  divorces  may  be  granted  for  any  of  the  above  causes 
in  the  discretion  of  the  court.^ 

Nonage. 

Male  14.  Female  12.  But  these  marriages  may  be  ratified 
by  cohabitation  after  arriving  at  lawful  age,  and  such  ratifica- 
tion is  an  absolute  bar.^ 

Residence. 
Two  years'  residence  is  required.'' 

Jurisdiction. 
Circuit  or  chancery  courts.* 

Service. 

Personal  service  or  by  publication  for  four  consecutive 
weeks.^ 

If  the  defendant  evades  service  for  three  months,  a  decree 
may  be  granted. ^° 

Evidence. 

A  divorce  may  be  granted  for  causes  arising  out  of  the  state, 
if  the  petitioner  has  lived  in  the  state  two  years  before  com- 
mencing action. ^^ 

No  decree  by  default. 

Proof  is  required. ^^ 

Marriage  may  be  pronounced  null  and  void  from  the  begin- 

4  Code  (1896)  §§  4185-4249  and  reports  passim. 

5  Code  (1896),  §4218. 

6  Wara-ick  v.  Cooper,  5  Sneed,  660. 

7  Code  (1896),  §4203. 

8  Code  (1896),  §4204. 

9  Code  (1896),  §§  6156,6165. 
10  Code  (1896),  §4209. 
"Code  (1896),  §4203. 

12  Code  (1896),  §4212. 

[327] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

ning,  an  absolute  decree  may  be  granted,  or  a  decree  of  separa- 
tion for  a  limited  time  may  be  given.^^ 
Alimony. 

Allowed.^^ 

Remarriage. 

Permitted,  but  the  defendant  guilty  of  adultery  may  not 
marry  the  co-respondent  during  the  hfe  of  the  plaintiff.^^ 

Costs. 

In  suit  for  absolute  divorce  brought  by  a  woman  unable  to 
give  bond  for  costs,  the  clerk  of  the  court  having  jurisdiction 
may  accept  in  Heu  of  such  bond  and  security  for  costs,  a  cash 
deposit  not  to  exceed  six  dollars. ^^ 

TEXAS. 

Grounds  for  absolute  divorce. 

Where  the  wife  commits  adultery  or  where  the  husband  is 
living  in  adultery. 

Conviction  of  felony,  unless  pardoned  twelve  months  after 
conviction,  and  provided  the  conviction  was  not  secured  on 
the  testimony  of  the  other  party. 

Outrageous  cruelty  by  either  party  such  as  to  render  hfe 
insupportable. 

Intentional  abandonment  or  desertion  for  three  years.^ 

Grounds  for  annulment  of  marriage. 

Impotency;  consanguinity;  fraud;  former  husband  or  wife 
living;  miscegenation.^ 
Nonage. 

Male  16.    Female  14.^ 

13  Code  (1896),  §4218. 
"Code  (1896),  §4221. 

15  Code  (1896),  §4228. 

16  Acts  of  1903  p.  438,  c.  197. 

1  Sayles's  Civil  Stats.  (1897),  Art.  2977. 

2  Sayles's  Civil  Stats.  (1897),  §  2976. 

3  Sayles's  CivU  Stats.  (1897),  §  2955. 

[  328  ] 


SYNOPSIS   OF  THE   DIVORCE   STATUTES. 

Residence. 
Six  months'  residence  in  the  county  is  required." 

Jurisdiction. 
District  court.^ 

Service. 

A  citation  must  be  served  personally  at  least  ten  days  be- 
fore the  return  day.® 

If  service  is  made  by  publication,  once  a  week  for  four  con- 
secutive weeks  before  return  day.'' 

Evidence. 

No  divorce  shall  be  granted  on  the  ground  of  adultery,  where 
the  husband  has  exposed  the  wife  to  lewd  company.* 
No  judgment  by  default. 
Confessions  are  insufficient. 
Either  party  may  testify.^ 

Alimony. 
Allowed.^" 

Remarriage. 

Permitted.^* 

UTAH. 

Grounds  for  absolute  divorce. 

Impotency  of  the  defendant  at  the  time  of  marriage. 

Adultery  committed  by  the  defendant  subsequent  to  mar- 
riage. 

Wilful  desertion  of  the  plaintiff  by  defendant  for  more  than 
one  year. 

4  Sayles's  CivU  Stats.  (1897),  §  2978. 

5  Sayles's  Civil  Stats.  (1897),  §  2976. 

6  Sayles's  Civil  Stats.  (1897),  §  1228. 
'Sayles's  Civil  Stats.  (1897),  §  1235. 

8  Sayles's  CivU  Stats.  (1897),  Art.  2981. 

9  Sayles's  Civil  Stats.  (1897),  Art.  2979. 

10  Sayles's  Civil  Stats.  (1897),  §2986. 

11  Sayles's  Civil  Stats.  (1897),  §  2982. 

[329] 


THE   LAW   or    MARRIAGE   AND    DIVORCE. 

Wilful  neglect  of  defendant  to  provide  for  plaintiff  the  com- 
mon necessaries  of  life. 

Habitual  drunkenness  of  defendant. 

Conviction  of  defendant  for  felony. 

Cruel  treatment  of  plaintiff  by  defendant  to  the  extent  of 
causing  great  bodily  harm  or  great  mental  distress  to  plaintiff. 

Permanent  insanity.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity;  force;  fraud;  former  husband  or  wife  Hving; 
idiocy;  lunacy;  miscegenation  (negro  or  MongoHan).^ 

Grounds  for  partial  divorce. 

No  provision  is  made  therefor  by  statute,  but  the  court  may 
decree  separate  maintenance.^ 

Nonage. 

Male  16.  Female  14.  But  these  marriages  may  be  ratified 
by  cohabitation  after  arriving  at  lawful  age,  and  such  ratifica- 
tion is  an  absolute  bar  to  annulment."* 

Residence. 
One  year's  residence  is  required.^ 

Jurisdiction. 
District  court.® 

Service. 

Personal  service  or  by  publication.  If  by  publication,  once 
a  week  for  five  consecutive  weeks. 

Personal  service  outside  of  the  state  is  equivalent  to  pubH- 
cation. 

1  Laws  of  1903,  p.  39,  c.  43. 

2  Rev.  Stats.  (1898),  §§  1183,  1184,  1214,  1215. 

3  Rev.  Stats.  (1898),  §§  1216-1220. 

4  Rev.  Stats.  (1898),  §  1215. 

5  Laws  of  1903,  p.  39,  c.  43. 

8  Rev.  Stats.  (1898),  §§  670  1208.     See  Laws  of  1903,  p.  39,  c.  43. 
[330] 


SYNOPSIS   OF  THE   DIVORCE  STATUTES. 

Service  is  complete  thirty  days  after  first  publication  or  ten 
days  after  personal  service  out  of  the  stated 

Evidence. 

No  decree  is  entered  by  default. 
Evidence  must  be  produced.* 

County  attorney  to  be  notified  and  to  make  defense  in  case 
of  permanent  insanity.^ 

Alimony. 

Allowed.io 

Remarriage. 
Not  forbidden, 

VERMONT. 

Grounds  for  absolute  divorce. 

Adultery  in  either  party. 

When  either  party  is  sentenced  to  confinement  at  hard  labor 
in  the  state  prison  for  life,  or  for  three  years  or  more,  and  is 
actually  confined  at  the  time. 

Intolerable  severity  in  either  of  the  parties. 

When  either  has  been  absent  seven  years  and  not  heard  of 
during  that  time. 

Wilful  desertion  for  three  consecutive  years. 

If  the  husband  being  of  sufficient  pecuniary  ability  to  pro- 
vide suitable  maintenance  for  his  vdie,  shall  without  cause  wan- 
tonly, ciiaelly,  and  grossly  refuse  or  neglect  so  to  do.^ 

Grounds  for  annulment  of  marriage. 

Want  of  age;  force;  fraud;  physical  incapacity;  idiocy;  lu- 
nacy,^ 

7  Rev.  Stats.   (1898),   §§2948,  2950. 

8  Rev.  Stats.   (1898),  §  1211. 

9  Laws  of  1903,  p.  39,  c.  43. 

10 Rev.  Stats.  (1898),  §§  1210,  1212. 

1  Stats.  (1894),  §2674. 

2  Stats.  (1894),  §2661. 

[331] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE. 

For  force  or  fraud,  the  action  must  be  brought  during  the 
lifetime  of  one  or  both  of  the  parties.  And  the  marriage  will 
not  be  annulled  if  the  parties  have  voluntarily  cohabited  to- 
gether.^ 

For  physical  incapacity,  the  action  must  be  commenced 
within  two  years  of  the  time  of  marriage.^ 

For  idiocy  or  lunacy,  the  action  must  be  brought  in  the  life- 
time of  the  parties.^ 

Grounds  for  partial  divorce. 

Separations  may  be  decreed  for  the  same  causes  as  absolute 
divorces  are  decreed.^ 

Consanguinity  and  affinity ;  former  husband  or  wife  living. 

Such  marriages,  if  contracted  in  the  state,  are  void  without 
legal  process.'^ 

Nonage. 

Male  16.  Female  14.  But  such  marriages  may  be  ratified 
if  cohabitation  has  taken  place  after  arriving  at  lawful  age, 
and  such  cohabitation  is  an  absolute  bar  to  annuhnent.* 

Residence. 

No  divorce  will  be  granted  for  any  cause  which  accrued  in 
any  other  state  or  country  before  the  parties  Hved  together  as 
husband  and  wife  in  the  state  and  while  neither  party  was  a 
resident  of  the  state,  unless  the  Hbellant  has  resided  in  the  state 
two  full  years  and  in  the  county  six  months  next  preceding  the 
term  of  court.® 

'Stats.  (1894),  §2669. 

4  Stats.  (1894),  §2671. 

5  Stats.  (1894),  §§2663,  2664. 

6  Laws  of  1896,  p.  43,  No.  51. 

7  stats.  (1894),  §  2658. 

8  Stats.  (1894),  §§4908,4909. 

9  Laws  of  1896,  p.  43,  No.  50. 

[  332  ] 


SYNOPSIS   OF   THE    DIVORCE  STATUTES. 

Jurisdiction. 
County  court.  ^° 

Service. 

Personal  service  or  by  publication.  If  by  publication,  for 
three  consecutive  weeks,  the  last  publication  six  weeks  before 
the  commencement  of  the  term.^^ 

Evidence. 
Trial  by  the  court.^^ 
Either  party  may  testify." 

Alimony. 

Allowed.^'' 

Remarriage. 

It  is  not  lawful  for  any  libellee  in  any  divorce  proceeding  in 
which  a  divorce  is  granted  to  marry  any  person  other  than  the 
petitioner  for  the  space  of  three  years  next  after  the  granting 
of  such  divorce.  But  this  provision  does  not  apply  after  the 
death  of  the  petitioner.^^ 

VIRGINIA. 
Qrounds  for  absolute  divorce. 

Adultery. 

Natural  or  incurable  impotency  existing  at  the  time  of  en- 
tering into  the  matrimonial  contract. 

Where  either  of  the  parties  is  sentenced  to  confinement  in 
the  penitentiary.  [No  pardon  granted  to  the  party  so  sen- 
tenced shall  restore  such  party  to  his  or  her  conjugal  rights.] 

Where,   prior   to  the  marriage,  either  party,  without  the 

"Stats.  (1894),  §§2678,  270^ 
"Stats.  (1894),  §§  2680,  2682. 

12  Stats.  (1894),  §2678. 

13  Stats.  (1894),  §  124.3. 

"  Stats.  (1894),  §§  2687  et  seq.;  Laws  of  1896,  p.  43,  No.  51;  Laws  of  1898, 
p.  38,  No.  56,  p.  39,  No.  57. 
15  Stats.  (1894),  §2703. 

[333] 


THE    LAW   OF   MARRIAGE   AND   DIVORCE, 

knowledge  of  the  other,  has  been  convicted  of  an  infamous 

offence. 

Where  either  party,  charged  with  an  offence  punishable  with 
death  or  confinement  in  the  penitentiary,  has  been  indicted, 
is  a  fugitive  from  justice,  and  has  been  absent  for  two  years. 

Where  either  party  wilfully  abandons  or  deserts  the  other 
for  three  years. 

Where  at  the  time  of  the  marriage,  the  wife,  without  the 
knowledge  of  the  husband,  was  with  child  by  some  person 
other  than  her  husband  or  prior  to  such  marriage  had  been  a 
prostitute.^ 

Grounds  for  annulment  of  marriage. 

Physical  incapacity;  insanity;  consanguinity  and  affinity. ^ 
[If  the  parties  leave  the  state  to  have  the  marriage  solemnized 
and  to  evade  the  law  and  then  return  to  the  state  the  marriage 
is  void].^ 

Grounds  for  partial  divorce. 

Cruelty;  reasonable  apprehension  of  bocUly  hurt;  abandon- 
ment or  desertion."* 

When  three  years  have  elapsed  after  a  decree  or  three  years 
after  an  abandonment  or  desertion,  the  court  may  make  the 
decree  absolute.^ 


Nonage, 

Male  14.     Female  12.^ 


Residence. 

No  suit  for  divorce  is  maintainable  unless  one  of  the  parties 

1  Pollard's  Code  (1894),  §  2257. 

2  Pollard's  Code  (1904),  §  2252. 

3  Pollard's  Code  (1904),  §  2253. 

4  Pollard's  Code  (1904),  §  2258. 

5  Pollard's  Code  (1904),  §  2266. 

6  Pollard's  Code  (1904),  §  2254. 

[334] 


SYNOPSIS    OF   THE    DIVORCE   STATUTES. 

has  been  domiciled  in  the  state  for  at  least  one  year  preceding 
the  commencement  of  the  suit.''' 

Jurisdiction. 

Circuit  court,  corporation  court  on  the  chancery  side.* 

Service. 

Personal  service  or  by  pubUcation  for  four  consecutive 
weeks.  ^ 

Evidence. 

Where  the  wiie  is  pregnant  before  marriage  or  is  notori- 
ously immoral,  cohabitation  after  knowledge  acts  as  a  bar  to 
a  suit  for  cUvorce.^" 

Either  party  may  testify. 

Admissions  of  parties  must  be  corroborated." 

Alimony. 

Allowed.^2 

Remarriage. 

Permitted.  But  the  court,  in  its  discretion,  may  prohibit  the 
party  guilty  of  adultery  from  remarrjdng.^^ 

WASHINGTON. 

Grounds  for  absolute  divorce. 

When  the  consent  to  the  marriage  of  the  party  applying  for 
the  divorce  was  obtained  by  force  or  fraud,  and  there  has  been 
no  subsequent  voluntary  cohabitation. 

Adultery  on  the  part  of  the  wife  or  the  husband  when  un- 
forgiven,  and  apphcation  is  made  within  one  year  after  it 
shall  come  to  the  knowledge  of  the  party  applying  for  divorce. 

7  Pollard's  Code  (1904),  §  2259. 

8  Pollard's  Code  0904),  §  2259. 

9  Pollard's  Code  (1904),  §§  2260,  3231. 

10  Pollard's  Code  (1904),  §  2257. 

11  Pollard's  Code  (1904),  §  2260. 

12  Pollard's  Code  (1904),  §§  2261,  2263. 

13  Pollard's  Code  (1904),  §  2265. 

[335] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

Impotency. 

Abandonment  for  one  year. 

Cruel  treatment  of  either  party  by  the  other,  or  personal  in- 
dignities rendering  life  burdensome. 

Habitual  drunkenness  of  either  party. 

Neglect  or  refusal  of  the  husband  to  make  suitable  provision 
for  his  family. 

Imprisonment  of  either  party  in  the  penitentiary,  if  com- 
plaint is  filed  during  the  term  of  such  imprisonment. 

A  divorce  may  be  granted  upon  application  of  either  party 
for  any  cause  deemed  by  the  court  sufficient,  provided  the 
court  is  satisfied  that  the  parties  can  no  longer  live  together. 

If  chronic  mania  or  dementia  has  existed  ten  years,  the 
court,  in  its  discretion,  may  enter  a  decree.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity  and  affinity;  force;  fraud;  former  husband  or 
wife  Hving;  want  of  age  or  understanding.^ 

Nonage. 

Male  21.  Female  18.'  But  parent  or  guardian  may  consent 
to  marriage  at  an  earUer  age."* 

Residence. 

One  year  in  state  before  bringing  action.^ 

Jurisdiction. 

Superior  court.® 
Service. 

Personally,  by  telegraph,  or  by  pubfication.^ 

1  Ball.  Codes  &  Stats.  (1897),  §  5716. 

2  Ball.  Codes  &  Stats.  (1897),  §§  4468,  4477,  5717. 

3  Ball.  Codes  &  Stats.  (1897),  §  4467. 
i  Ball.  Codes  &  Stats.  (1897),  §  4479. 

5  Ball.  Codes  &  Stats.  (1897),  §  5718. 

6  Ball.  Codes  &  Stats.  (1897),  §  5716. 

7  Ball.  Codes  &  Stats.  (1897),  §§  4875,  4877,  4898. 

[  336  ] 


SYNOPSIS   OF   THE    DIVORCE   STATUTES. 

Evidence. 

Trial  must  be  by  the  court,*  and,  when  the  suit  is  undefended, 
it  is  the  duty  of  the  prosecuting  attorney  to  resist  the  peti- 
tion.9 

Suit  for  adultery  must  be  commenced  wdthin  one  year  after 
date  of  discovery  by  the  injured  party. ^° 

No  decree  by  default.* 

Admissions  of  parties  must  be  corroborated.* 

Alimony. 

Allowed.  Pending  the  action  the  court  may  make  such  dis- 
position of  the  persons,  property,  and  ciiildren  of  the  parties 
as  may  be  deemed  right  and  proper,  and  in  granting  the  di- 
vorce may  make  such  further  decree  as  may  appear  just  and 
equitable.^  ^ 

Remarriage. 

Permitted.  But  whenever  a  divorce  is  granted  the  judg- 
ment shall  expressly  prohibit  both  parties  from  marrying  any 
third  person  \\ithin  six  months  from  the  date  of  entry  of  judg- 
ment or  decree. ^^ 

WEST  VIRGINIA. 

Grounds  for  absolute  divorce. 

Adultery. 

Impotency  at  the  time  of  marriage. 

Sentence  to  the  penitentiary. 

Where  prior  to  the  marriage  there  has  been,  without  the 
knowledge  of  the  other  party,  a  conviction  of  an  infamous 
crime. 

Wilful  desertion  for  three  years. 

If  the  wife  without  the  husband's  knowledge  was  enceinte 

8  BaU.  Codes  &  Stats.  (1897),  §  5719. 
8  Ball.  Codes  &  Stats.  (1897),  §  5729. 

10  Ball.  Codes  &  Stats.  (1897),  §  5716. 

11  Ball.  Codes  &  Stats.  (1897),  §§  5722,  5723. 

12  Ball.  Codes  &  Stats.   (1897),   §§  5725-5727. 

22  [  337] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

at  the  time  of  marriage  or  was  notoriously  a  prostitute,  or  if 
the  husband  without  the  wife's  knowledge,  was,  prior  to  the 
marriage,  notoriously  a  hcentious  person.^ 

Grounds  for  annulment  of  marriage. 

Consanguinity  and  affinity;  impotency;  former  husband  or 
wife  Uving;  insanity;  miscegenation.^ 

Grounds  for  partial  divorce. 

Cruel  and  inhuman  treatment.  [A  false  charge  of  prostitu- 
tion made  against  the  wife  by  the  husband  is  cruel  treatment.] 

Reasonable  apprehension  of  bodily  hurt. 

Abandonment. 

Desertion. 

Habitual  drunkenness  acquired  after  marriage.^ 

And  where  the  parties  have  been  separated  by  a  decree  of 
court  for  two  years  without  reconcihation,  the  court  may,  upon 
the  production  of  suitable  evidence,  grant  an  absolute  decree.^ 

Nonage. 

Male  18.  Female  16.^  But  the  code  provides  for  marriages 
of  females  under  fourteen.^ 

Residence. 

One  of  the  parties  must  have  resided  in  the  state  for  a  year 
preceding  the  time  of  bringing  the  suit.'^ 

Jurisdiction. 

Chancery  side  of  the  circuit  court.  Suit  may  be  brought  in 
the  county  where  the  parties  last  lived  together,  or,  at  plain- 
tiff's option,  in  the  county  where  defendant  resides,  if  a  resi- 
dent.^ 

1  Code  (1899),  p.  661,  §5. 

2  Code  (1899),  p.  660,  §  1. 

3  Code  (1899),  p.  662,  §6. 

4  Code  (1899),  p.  663,  §  13. 
6  Code  (1899),  p.  661,  §2. 
eCode  (1899),  p.  656,  §  12. 
7Code(1899),  p.  662,  §7. 

8  Code  (1899),  p.  662,  §7. 
[338] 


SYNOPSIS  OF   THE   DIVORCE   STATUTES. 

Service. 

Personally  or  by  publication  for  four  successive  weeks.^ 
Personal  service  outside  of  the  state  is  equivalent  to  publica- 
tion, ^o 

Evidence. 

Admissions  must  be  corroborated. 
No  decree  by  default." 

Alimony. 

Allowed. ^^ 

Remarriage. 

Not  forbidden. 


WISCONSIN. 
Grounds  for  absolute  divorce. 

Adultery. 

Impotency. 

When  either  party  subsequent  to  the  marriage  has  been  sen- 
tenced to  imprisonment  for  three  years  or  more.  No  pardon 
granted  after  a  divorce  shall  restore  the  party  sentenced  to  his 
or  her  conjugal  rights. 

The  wilful  desertion  of  one  party  from  the  other  for  a  term 
of  one  year. 

When  the  treatment  of  the  wife  by  the  husband  has  been 
cruel  and  inhuman,  whether  practiced  by  using  personal  vio- 
lence, or  by  any  other  means,  or  when  the  wife  shall  be  guilty 
of  Uke  cruelty  to  her  husband,  or  shall  be  given  to  intoxica- 
tion. 

Habitual  drunkenness  for  the  space  of  one  year  immediately 
preceding  the  commencement  of  the  action. 

Whenever  the  husband  and  wife  shall  have  voluntarily  Uved 

9  Code  (1899),  p.  848,  §  12. 
10  Code  (1899),  p.  848,  §  13. 
"Code  (1899),  p.  662,  §8. 
12  Code  (1899),  p.  662  et  seq. 

[  339  ] 


THE  LAW    OF   MARRIAGE   AND   DIVORCE. 

entirely  separate  for  the  space  of  five  years  next  preceding  the 
commencement  of  the  action.^ 

In  the  cUscretion  of  the  court  upon  the  grounds  for  which 
partial  divorce  may  be  granted.^ 

Grounds  for  annulment  of   marriage. 

Fraud;  force;  want  of  age  or  imderstanding.^ 

Grounds  for  partial  divorce. 

A  divorce  from  bed  and  board  forever,  or  for  a  limited  period, 
may  be  adjudged  for  the  fourth,  fifth,  and  sixth  grounds  for 
an  absolute  divorce  as  enumerated  above,  or  for  the  extreme 
cruelty  of  either  party;  also  when  the  husband,  being  of  suffi- 
cient abihty,  shall  refuse  or  neglect  to  provide  for  his  wife,  or 
when  his  conduct  toward  her  may  render  it  unsafe  and  im- 
proper for  her  to  live  with  him."* 

Consanguinity  and  affinity ;  former  husband  or  wife  living. 

Marriages  under  these  circumstances,  if  contracted  within 
the  state,  are  void  without  legal  process.^ 

Nonage. 

Male  18.  Female  15.*^  But  these  marriages  may  be  ratified 
when  cohabitation  has  taken  place  after  arriving  at  lawful  age, 
and  such  ratification  is  an  absolute  bar  to  annulment.'^ 

Residence. 

No  divorce  shall  be  granted  unless  the  plaintiff  shall  have 
resided  in  the  state  one  year  immediately  preceding  the  time 
of  the  commencement  of  the  action,  except  for  adultery  al- 
leged to  have  been  committed  while  the  plaintiff  was  a  resident 
of  the  state,  or  unless  the  marriage  was  solemnized  in  the  state, 

1  Stats.  (1898),  §2356. 

2  Stats.  (1898),  §  2358. 

3  Stats.  (1898),  §§  2350,  2353. 

4  Stats.  (1898),  §  2357. 

5  Stats.  (1898),  §2349. 

6  Stats.  (1898),  §  2329. 
'Stats.  (1898),  §§  2350,  2353. 

[  340  ] 


SYNOYSIS   OF  THE   DIVORCE   STATUTES. 

and  the  plaintiff  shall  have  resided  therein  from  the  time  of 
the  marriage  to  the  time  of  the  commencement  of  the  action, 
or  miless  the  action  shall  be  brought  by  the  wife  and  the  hus- 
band shall  have  resided  in  the  state  for  one  year  next  preced- 
ing the  commencement  thereof.* 

Jurisdiction. 

Circuit  court.^ 

Service, 

Personal  service  or  by  publication,  once  a  week  for  six  weeks. 

Personal  service  outside  of  the  state  is  equivalent  to  pubh- 
cation.^" 

Evidence. 

Actions  for  adultery  must  be  brought  within  three  years 
after  discovery. ^^ 

Sentence  to  imprisonment  for  life  dissolves  the  marriage,  and 
no  pardon  restores  the  party  so  sentenced  to  his  or  her  con- 
jugal rights.^^ 

Alimony. 

Allowed.^^ 

Remarriage. 

Permitted.^^ 


WYOMING. 
Grounds  for  absolute  divorce. 
Adultery. 
Impotency. 

8  stats.  (1898),  §2359. 

9  Stats.  (1898),  §  2348. 

10  Stats.  (1898),  §§  2636,  2639,  2640. 
"Stats.  (1898),  §2360. 

12  Stats.  (1898),  §2355. 

13  Stats.  (1898),  §  2364  et  seq. 

14  Stats.  (1898),  §2374. 

[  341  ] 


THE    LAW   OF  MARRIAGE  AND   DIVORCE. 

When  one  of  the  parties  has  been  convicted  of  a  felony  and 
sentenced  to  imprisonment  therefor  in  any  prison. 

When  either  party  has  wilfully  deserted  the  other  for  the 
period  of  one  year. 

When  the  husband  or  wife  has  become  an  habitual  drunkard. 

When  one  of  the  parties  has  been  guilty  of  extreme  cruelty 
to  the  other. 

When  the  husband  for  the  period  of  one  year  has  neglected 
to  provide  the  common  necessaries  of  Ufe,  provided  the  neg- 
lect is  not  the  result  of  poverty  on  the  part  of  the  husband 
which  he  could  not  avoid  by  ordinary  industry. 

When  either  party  shall  offer  such  indignities  to  the  other 
as  shall  render  his  or  her  condition  intolerable. 

Wlien  the  husband  shall  be  guilty  of  such  conduct  as  to  con- 
stitute him  a  vagrant  within  the  meaning  of  the  law  respecting 
vagrancy. 

Wlien,  prior  to  the  contract  of  marriage  or  the  solemnization 
thereof,  either  party  shall  have  been  convicted  of  a  felony  or 
infamous  crime  in  any  state  or  territory,  without  knowledge 
on  the  part  of  the  other  party  of  such  fact  at  the  time  of  mar- 
riage. 

When  the  intended  wife,  at  the  time  of  contracting  the  mar- 
riage or  at  the  time  of  solemnization  thereof,  shall  have  been 
pregnant  by  any  other  man  than  her  intended  husband  and 
without  his  knowledge  at  the  time  of  such  solemnization.^ 

Grounds  for  annulment  of  marriage. 

Want  of  age;  force  or  fraud.^ 

Consanguinity  and  affinity ;  former  husband  or  wife  living ;   insan- 
ity and  idiocy. 

Marriages  under  these  circumstances  are  void  without  legal 
process.^ 

1  Rev.  Stats.  (1899),  §  2988. 
2Rev.  Stats.  (1899),  §2982. 
3  Rev.  Stats.  (1899),  §2981. 

[342] 


SYNOPSIS   OF  THE   DIVORCE   STATUTES. 

Nonage. 
Male  18.     Female  16.^ 

Residence. 

The  plaintiff  must  have  resided  in  the  state  one  year.^  A 
married  woman  may  obtain  a  residence  in  the  state,  although 
her  husband  resides  in  another  state.^ 

Jurisdiction. 

District  court.'' 

Service. 

Personal  service  or  by  pubUcation  for  six  successive  weeks.^ 

Evidence. 

Action  for  physical  incompetency  must  be  brought  within 
two  years  of  the  date  of  marriage.* 

Action  for  adultery  must  be  commenced  within  three  years 
of  discovery, ^° 

The  admissions  or  declarations  of  the  parties  must  be  cor- 
roborated." 

Alimony. 

Allowed.^^ 

Remarriage. 

Not  forbidden. 

4  Rev.  Stats.  (1899),  §  2956. 

5  Laws  of  1901,  p.  4,  c.  2. 

6  Rev.  Stats.  (1899),  §  3013. 
^  Rev.  Stats.  (1899),  §  2988. 

8  Rev.  Stats.  (1899),  §§  3514,  3523. 

9  Rev.  Stats.  (1899),  §  3010. 
10  Rev.  Stats.  (1899),  §3012. 
"Rev.  Stats.  (1899),  §3011. 

12  Rev.  Stats.  (1899),  §§2995  et  seq. 


[343] 


INDEX  TO   FORMS. 


INDEX  TO  FORMS. 

(Many  of  these  forms  were  furnished  the  author  by  George  P.  Drury, 
Esq.,  Clerk  of  the  Divorce  Court,  Suffolk  County,  Boston,  Massa- 
chusetts.) 


No. 

1 .  Instructions  for  drawing  libel 349 

2.  Form  of  libel 350 

3.  Attachment  clause 351 

3a.  Attachment  by  trustee  process 351 

4.  Alimony 352 

5.  Maiden  name 352 

6.  Custody  of  children 352 

7.  Adultery 353 

8.  Adultery 353 

9.  Adultery  with  specific  and  general  allegations 353 

9a.  Impotency 354 

10.  Cruel  and  abusive  treatment 354 

11.  Habits  of  intoxication 354 

12.  Refusal  and  neglect  to  provide 355 

13.  Desertion 355 

14.  Imprisonment 355 

15.  Petition  for  annulment  of  marriage,  other  marriage  in  force ... .  356 
15a.  Petition  for  annulment 357 

16.  Impotency  of  husband 360 

17.  Impotency  of  wife 360 

18.  Order  to  summon  libellee 361 

19.  Summons 362 

20.  Order  of  notice  by  publication 362 

21.  Order  of   notice   by   publication   and   attachment   by  trustee 

process 363 

22.  Order  for  attachment  of  real  and  personal  property  and  attach- 

ment by  trustee  process 364 

23.  Affidavit  of  notice 365 

24.  Affidavit  of  notice  to  co-respondent 367 

25.  Order  restraining  libellee  from  imposing  any  restraint  upon  the 

personal  liberty  of  the  libellant 368 

[  345  ] 


INDEX  TO  FORMS. 

No.  Page 

26.  Order  as  to  allowance 368 

27.  Libellee's  motion  for  allowance 369 

28.  Alimony  pendente  lite  and  counsel  fees 370 

29.  Form  of  execution  for  alimony,  weekly,  due  and  unpaid 371 

30.  Petition  for  contempt  for  non-payment  of  alimony 372 

31.  Order  of  notice  on  petition  for  contempt  for  non-payment  of 

alimony 373 

32.  Held  in  contempt,  failure  to  pay  alimony 374 

33.  Motion  to  transfer  suit  to  another  county 375 

34.  Motion  for  specifications 375 

34a.  Plea  to  jurisdiction 376 

35.  Connivance 376 

36.  Collusion  377 

37.  Condonation  377 

37a.  General  denial  and  condonation 378 

38.  Recrimination 378 

39.  Order  of  court  for  the  examination  of  person  alleged  to  be 

impotent  378 

40.  Decree,  libel  continued   after  hearing,   with  custody  of  chil- 

dren    379 

41.  Decree  dismissing  libel,  the  marriage  being  void 380 

41a.  Decree  dismissing  libel  without  prejudice 381 

416.  Decree  dismissing  libel  for  want  of  jurisdiction 381 

41c.  Decree  of  validity 382 

42.  Decree  nisi 383 

43.  Decree  nisi  after  appointment  of  guardian  ad  litem 384 

43a.  Objections  to  decree  absolute 385 

44.  Plea  of  collusion  to  prevent  a  decree  nisi  from  being  made  ab- 

solute    386 

45.  Order  that  decree  nisi  shall  not  become  absolute 386 

46.  Decree  of  divorce  (absolute) 387 

47.  Decree  of  divorce 388 

48.  Decree  of  divorce  a  mensa  et  thoro  (from  bed  and  board) 389 

49.  Order  to  produce  child  in  court 391 

50.  Habeas    corpus 391 

51.  Decree  awarding  temporary  custody  of  child 392 

52.  Agreement  for  third  party  to  have  care  and  custody  of  child . .  393 
63.  Decree  for  custody  of  children 394 

54.  Decree  for  costs 395 

55.  Agreement  to  modify  decree 395 

56.  Order  to  modify  decree 396 

57.  Agreement  to  sustain  decree  of  probate  court 397 

58.  Dismissal  of  appeal  from  the  probate  court 397 

59.  Affidavit  of  physician  that  witness  is  unable  to  attend  court. .  398 

[346] 


INDEX   TO   FORMS. 

No.  Pag^ 

60.  Petition  for  writ  of  protection 399 

61.  Petition  for  custody  of  minor  children 400 

62.  Husband's  petition  to  reduce  alimony 401 

63.  Wife's  petition  for  alimony 402 

64.  Petition  to  vacate  decree  nisi 403 

65.  Objection  to  decree  absolute 405 

66.  Decree  dismissing  libel  for  adultery 406 

67.  Answer  (general  denial) ^^^ 


[3471 


FORMS. 


FORMS. 
No.  1. 

Instructions  for  Drawing  Libel. 

The  attorney  in  drawing  a  libel  or  petition  for  divorce  should 
follow  carefully  the  wording  of  the  local  statute  and  observe 
the  common  rules  of  pleading.  For  example,  if  the  statute 
provides  for  a  divorce  where  the  defendant  has  contracted 
gross  and  confirmed  habits  of  intoxication,  caused  by  the 
voluntary  and  excessive  use  of  intoxicating  hquors,  opium, 
or  other  drugs,  it  will  not  be  sufficient  to  state  in  the  Ubel 
that  the  defendant  has  contracted  gross  habits  of  intoxica- 
tion. So  it  will  not  be  sufficient  to  simply  say  that  the  de- 
fendant has  committed  the  crime  of  adultery,  without  stating 
where  and  with  whom  it  was  committed.  If  co-respondent 
is  unknown,  or  the  place  where  the  act  was  committed  is 
unknown,  it  must  be  stated  in  the  Ubel.  Neither  is  it  suffi- 
cient to  state  that  the  defendant  has  neglected  to  provide 
suitable  support  and  maintenance  for  the  petitioner.  It  must 
be  alleged  that  the  defendant  has  cruelly  and  wantonly  neg- 
lected or  refused  to  provide  a  suitable  support  and  main- 
tenance for  her,  being  of  sufficient  abihty  so  to  do. 

By  following  the  wording  of  the  local  statutes  in  drawing 
petitions  for  divorce,  the  attorney  will  not  only  save  himself 
much  time  and  trouble  by  motions  to  amend,  further  notice 
on  the  defendant,  and  continuance,  but  possibly  expense  in 
case  of  service  by  pubhcation  or  repubUcation. 

[349] 


FORMS. 

No.  2. 

Form  of  Libel. 


COMMONWEALTH  OF  MASSACHUSETTS. 
Superior  Court,  ,  ss.: 

To  THE  HONORABLE  THE  JUSTICES  OF  THE  SUPERIIOR  CoURT 

next  to  be  holden  at within  and  for  the  County  of 


Respectfully  libels  and  represents  of  

in  said  County,  that    he  was  lawfully  married  to  

now  of at on  the day  of , 

j^   J)  ^  1 ^  and  thereafterwards  your  Libellant  and  the  said 

lived  together  as  husband  and  wife  in  this  Com- 
monwealth,   to   wit:  at   ,    that   your   Libellant   has 

always  been  faithful  to  h—  marriage  vows  and  obligations, 

but  the  said  being  wholly  regardless  of  the  same 

at on the day  of ,  A.  D., 

1—,  . 

Wherefore,  your  Libellant  prays  that  a  divorce  from  the 
bonds  of  matrimony  may  be  decreed  between  your  Libellant 

and  the  said  and  that  the  real  and  personal  estate 

of  the  said may  be  attached  to  the  value  of 

dollars  in  order  to  secure  a  suitable  support  and  maintenance 
to  your  Libellant  and  to  such  children  as  may  be  committed 
to  h —  care  and  custody.    . 


Dated  the day  of ,  A.  D.,  19—. 

After  filling  in  the  body  of  the  hbel  and  stating  the  cause 
or  causes  of  divorce  (any  number  of  causes  for  divorce  may 
be  inserted  m  the  libel  and  sufficient  proof  of  any  one  of  them 
will  justify  the  court  in  decreeing  a  divorce),  if  an  attach- 
ment is  desired,  or  ahmony  is  prayed  for,  or  the  care  and 
[350] 


FORMS. 


custody  of  children  or  maiden  name  is  desired,  insert  the 
following : — 


No.  3. 

Attachment  Clause. 

If  an  attachment  of  the  husband's  property  is  required, 
on  a  libel  filed  by  the  wife,  insert  in  the  prayer,  "and  that 

the  real  and  personal  estate  of  the  said  may  be 

attached  to  the  value  of  dollars  in  order  to  secure 

a  suitable  support  and  maintenance  to  your  Ubellant  and  to 
such  children  as  may  be  committed  to  her  care  and  custody." 

If  an  attachment  by  trustee  process  is  required,  add  after 

the  above,  "and  whereas  the  said has  not  in  his  own 

hands  and  possession  goods  and  estate  to  the  said  value,  but 

has  entrusted   to  and  deposited  in  the  hands  of  , 

trustee  of  the  said ,  goods,  effects,  and  credits  to  the 

said  value,  your  hbellant  prays  that  the  goods,  effects,  and 

credits  of  the  said in  the  hands  of  said  trustee  may 

be  attached  by  trustee  process  to  the  said  value." 


No.  3a. 

Prayer  for  Attachment  by  Trustee  Process. 

"And  that  the  goods,  effects,  and  credits  of  the  said 

in  the  hands  and  possession  of may  be  attached  by 

trustee  process  to  the  value  of dollars,  said 

not  having  in  his  own  hands  and  possession  goods  and  estate 
to  the  said  value." 

[351] 


FORMS. 

No.  4. 

Alimony. 

A  clause  may  also,  in  a  proper  case,  be  inserted,  praying  for 
alimony,  substantially  thus:  "And  that  such  alimony  out  of 
his  estate  may  be  decreed  to  her  as  seems  just  and  reason- 
able;" or  "that  he  may  be  required  to  pay  to  your  libellant 
such  alimony  as  seems  just  and  reasonable." 


No.  5. 

Maiden  Name. 

In  case  of  a  libel  by  a  wife,  if  she  wishes  to  resume  her 
maiden  name,  or  the  name  of  a  former  husband,  insert  in  the 
prayer,  "and  that  your  libellant  may  be  allowed  to  resume 

her  maiden  name  of  A C D ;"  or 

"  the  name  of  F ,  being  that  of  her  former  husband." 


No.  6. 

Custody  of  Children. 

When  the  libellant  desires  the  care  and  custody  of  the 
minor  children  of  the  marriage,  insert  in  the  prayer,  "and 
that  the  care  and  custody  of  their  two  (or  as  the  number 

may  be)  minor  children,  namely,  H V ,  and 

C L ,  may  be  given  (or  decreed)  to  h — ." 


The  same.     Or  insert  in    the   body    of   the  libel,  after  the 
allegation  of  marriage,  "and  that  there  have  been  born  of 
[352] 


FORMS. 

this  marriage  a  daughter,  H V ,  and  a  son, 

C L ,  now  aged,  respectively,  nine  and  twelve 

years;"  and  then  insert  in  the  prayer,  "and  that  the  care  and 
custody  of  said  minor  children  be  given  to  your  libellant." 
(Ages  of  children  should  be  stated.) 


No.  7. 

Adultery. 


"At on  or  about  the  day  of , 

A.  D.,  19 — ,  committed  the  crime  of  adultery  with  one ;" 

or,  if  the  name  of  the  co-respondent  is  not  known,  say,  "with 
a  certain  person  whose  name  is  to  your  Hbellant  unknown." 


No.  8. 

Adultery. 


"That,  at  divers  times  between  the  1st  day  of  May,  19 — , 
and  the  filing  of  this  libel,  and  at  divers  places  in  said  City 
of  Boston,  but  at  what  particular  times  and  places  the  libellant 
is  unable  more  particularly  to  state,  the  said  Ubellee  has  com- 
mitted adultery  with ,  and ,  and  with  other 

whose  names  are  unknown  to  the  hbellant." 


No.  9. 

Adultery  with  Specific  and  General  Allegations. 

"On  or  about  the  day  of  ,  A.  D.,  19 — , 

at aforesaid,  committed  the  crime  of  adultery  with 

23  [  353  ] 


FORMS. 


a  person  to  your  libellant  unknown,  but  by  information  of 

the  name  of  and  on  or  about  the  day  of 

^  A.  D.,  19 — ,  at  in  this  commonwealth, 

committed  the  crime  of  adultery  with  some  person  to  your 
hbellant  unknown;  and,  at  the  same  time  and  place  to  your 
Hbellant  unknown,  committed  the  crime  of  adultery  with  one 

;  and  on  divers  other  days  between  her  said  marriage 

with  him  and  this  date,  committed  the  crime  of  adultery  with 
divers  lewd  women  to  your  hbellant  unknown." 


No.  9a. 

Impotency. 


That  said  hbellant  is  and  ever  since  said  marriage  has  been 
impotent,  and  that  said  impotency  is  incurable. 


No.  10. 

Cruel  and  Abusive  Treatment. 

"At on  or  about  the  day  of , 

A.  D.,  19 — ,  and  on  divers  other  days  and  times,  was  guilty 
of  cruel  and  abusive  treatment  towards  your  libeUant,"  or 
"did  inflict  cruel  and  abusive  treatment  upon  your  hbeUant." 


No.  11. 

Habits  of  Intoxication. 


"Has  contracted  gross  and  confirmed  habits  of  intoxication, 
caused  by  the  voluntary  and  excessive  use  of  intoxicating 
hquors,  opium  or  other  drugs." 
[354] 


FORMS. 

No.  13. 

Refusal  and  Neglect  to  Provide. 


"Being  of  sufficient  ability,  grossly,  wantonly  and  cruelly 
refuses  and  neglects  to  provide  a  suitable  maintenance  for  her." 


No.  13. 

Desertion. 


"At on  the day  of ,  A.  D.,  19—, 

(or  in  the  month  of ,  A.  D.,  19 — ,)  utterly  deserted 

h — ,  and  has  continued  such  desertion  from  that  day  (or  time) 
to  the  date  hereof,  being  more  than  three  consecutive  years 
next  prior  to  the  fihng  of  this  libel," 


No.  14. 

Imprisonment. 

"That  the  Ubellee  on ,  19 — ,  was  sentenced  by  the 

Superior  Court  in  county  and  Commonwealth  of 

Massachusetts  to  confinement  at  hard  labor  for  Ufe  (for 

years)  in  the  state  prison  at in  the  county  of 

for  the  crime  of  ." 

(In  Massachusetts  for  more  than  five  years,  to  wit:) 


[  355  ] 


FORMS. 

No.  15. 

Petition  for  Annulment  of  Marriage. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Supreme  Court. 

A.  B. 

V. 

C.  D.,  alias  E.  B. 

To  the  Honorable  the  Justices  of  the  Superior  Court,  next 

to  be  holden  at  Boston  within  and  for  the  County  of  Suffolk. 

Respectfully  represents  A.  B,  of  Boston  in  said  County 
that  on  or  about  January  15th,  A.  D,,  1894,  your  Ubellant 
went  through  a  marriage  ceremony  with  the  libellee,  in  the 
City  of  Boston,  in  the  County  of  Suffolk,  and  said  Common- 
wealth. The  Ubellee  at  that  time  representing  herself  as  an 
unmarried  woman.  That  after  said  ceremony  your  Ubellant 
and  the  Ubellee  Uved  together  as  husband  and  wife  in  this 
Commonwealth,  to-wit,  at  Boston,  for  about  one  month, 
when  your  Ubellant  learned  for  the  first  time  that  the  Ubellee 
was  already  married,  and  had  a  husband  Uving,  named  H.  K., 
who  resided  in  or  near  the  City  of  Montreal,  in  the  Province 
of  Quebec,  in  the  Dominion  of  Canada,  and  such  marriage 
was  in  force  the  day  of  her  alleged  marriage  to  your  Ubellant. 
That  your  Ubellant  upon  learning  of  said  prior  marriage  at 
once  ceased  to  cohabit  with  the  libellee  and  has  Uved  separate 
and  apart  from  her  ever  since. 

Wherefore  your  petitioner  prays  that  this  Honorable  Court 
will  declare  said  marriage  null  and  void. 

Dated  the  seventh  day  of  April,  A.  D.,  1905. 

(This  form  is  taken  from  the  original  papers.) 


[  356  ] 


FORMS. 

No.  15a. 

Petition  for  Annulment. 

COMMONWEALTH    OF    MASSACHUSETTS. 

Suffolk,  ss.;  Superior  Court. 

PETITION  FOR  ANNULMENT. 

To  the  Honorable  the  Justices  of   the  Superior  Court,  to  be 
holden  at  Boston  within  and  for  the  County  of  Suffolk: 

Respectfully  Ubels  and   represents  A.   B.   of  in 

the  County  of that  (he  or  she)  was  married  in  form 

of  law  but  not  in  legal  effect,  to  C.  N.  now  of on  the 

day  of ,  A.  D., . 

That  at  the  time  of  said  pretended  marriage  said  C.  D.  had 
a  former  (husband  or  wife)  Hving,  to-wit,  one  H.  K.  to  whom 

(he  or  she)  was  lawfully  married  at on  the 

day  of ,  A.  D., ,  and  that  said  marriage  was  still 

in  force. 

That  said  H.  K.  is  still  Uving,  and  no  divorce  has  ever  been 
granted  between  said  H.  K.  and  the  libellee. 

Wherefore  your  libellant  prays  that  said  pretended  mar- 
riage may  by  the  decree  of  this  Honorable  Court  be  declared 
null  and  void. 

Dated  the day  of ,  A.  D.,  . 

A.  B., 

Libellant. 

Note. — (//  since  the  separation  of  the  parties  between  whom 
the  marriage  is  sought  to  be  annulled  the  former  husband  or  wife 
has  died  or  been  divorced,  the  following  should  be  substituted  for 
the  next  to  the  last  paragraph  of  the  foregoing  libel:) 

''That  your  libellant  on  hearing  of  said  former  marriage, 

to-wit,  on  or  about  the day  of ,  A.  D., , 

left  the  said  hbellee,  and  has  never  since  cohabited  with  her, 

[357] 


FORMS. 

and  at  the  time  of  said  separation  said  H.  K.  was  still  living, 
and  said  marriage  to  (him  or  her)  was  still  in  force." 

(a)  Allegation  ivhere  lihellant's  former  husband  or  wife  is 
living. 

"That  at  the  time  of  said  pretended  marriage  your  libellant 
had  a  former  (husband  or  wife)  hving,  to-wit,  one  H.  K.  to 

whom  (he  or  she)  was  lawfully  married  at  on  the 

day  of ,  A.  D.,  .    That  your  libellant 

contracted  said  pretended  marriage  in  good  faith  and  in  the 
belief  that  said  H.  K.  was  dead.  That  as  soon  as  your  hbel- 
lant  learned  that  said  H.  K.  was  Uving,  your  libellant  and 
libellee  at  once  separated,  and  have  never  since  lived  to- 
gether." 

Note. — (It  is  not  essential  that  the  marriage  should  have  been 
entered  into  in  good  faith,  if  the  former  husband  or  wife  is  still 
living,  or  that  parties  should  have  ceased  to  cohabit,  but  obviously 
where  such  is  the  case  it  would  best  be  stated.) 

(6)  Where  two  years  had  not  elapsed  since  decree  absolute. 

Allegation  where  both  parties  entered  into  the  marriage 
outside  the  Commonwealth  for  the  purpose  of  evading  the 
laws  of  Massachusetts. 

"That  at  the  time  of  said  pretended  marriage  said  C.  D. 
had  a  former  (husband  or  wife)  living,  to-wit,  H.  K.  in  whose 

favor  a  decree  of  divorce  nisi,  was  granted  on  the  

day  of  ,  A.  D.,  ,  and  that  two  years  had  not 

elapsed  from  the  day  when  said  decree  nisi,  became  absolute. 

"That  your  libellant  and  said  hbellee  were  married  outside 
the  Commonwealth  in  order  to  evade  the  laws  of  this  Com- 
monwealth." 

(c)  Allegation  where  the  marriage  is  alleged  to  be  void  on  the 
ground  of  fraud. 
"That  the  libellant  was  induced  to  enter  into  said  pretended 
[  358  ] 


FORMS. 

marriage  by  the  fraud  and  misrepresentation  of  the  hbellee, 
in  that  prior  to  said  marriage  the  hbellee  represented  herself 
to  be,  and  induced  the  hbellant  to  beheve  that  she  was  a 
chaste  and  virtuous  woman;  but  that  in  fact  she  was  not  so, 
but  was  at  that  time  pregnant  with  a  bastard  child." 

(d)  "That  your  petitioner  was  induced  to  enter  into  said 
marriage  by  the  fraud  of  the  said  E.  A.  S.,  and  that  of  her 
parents,  A.  S.  and  R.  S.,  in  representing  that  the  said  cere- 
mony was  to  be  a  betrothal  ceremony;  and  your  petitioner, 
relying  upon  said  representations,  beheved  that  he  was  be- 
coming betrothed  to  the  said  E.  A.  S.  by  said  ceremony,  and 
that  he  was  not  being  married  to  her;  that  your  petitioner 
and  the  said  E.  A.  S.  have  never  lived  together  as  man  and 
wife. 

(This  form  was  taken  from  the  original  papers.) 

(e)  Nonage. 

''And  your  libellant  says  that  at  the  time  of  said  pretended 
marriage  she  was  under  the  age  of  sixteen  years,  and  that 
(she  has  never  lived  with  the  libellee  as  man  and  wife) "  or 
"she  left  said  hbellee  before  she  reached  the  age  of  sixteen 
years." 

(/)  Insanity. 

"That  at  the  time  of  said  pretended  marriage  said 

was  incapable  of  contracting  marriage,  being  insane,  and  has 
ever  since  continued  to  be  incurably  insane." 


Guardian  ad  litem. 


(g)  Prayer  to  legitimatize  children. 

(Add  after  the  prayer  to  have  the  marriage  declared  null 
and  void,  the  following:) 

"And  your  hbellant  says  that  said  marriage  between  the 

[359] 


FORMS. 

libellant  and  libellee  was  contracted  in  good  faith  and  in  the 
belief  on  the  part  of  both  of  them  that  said  H.  K.  was  dead, 
wherefore  your  hbellant  prays  that  E.  B.  and  G.  B.,  aged 

respectively and years,  the  minor  children 

of  the  marriage,  may  be  declared  to  be  (his  or  her)  legitimate 
children,  and  may  be  committed  to  (his  or  her)  care  and 
custody." 


No.  16. 

Impotency  of  Husband. 

"That  immediately  after  said  marriage  took  place  your 

libellant  discovered  that  the  said  ,  at  the  time  of 

his  intermarriage  with  your  libellant  as  aforesaid,  was,  and 
has  continued  to  be,  naturally  impotent  and  physically  in- 
capable of  entering  the  marriage  state;  that  the  said 

has  a  malformation  of  his  parts  of  generation,  so  that  the  said 
marriage  could  not  be  consummated  by  the  sexual  intercourse 
of  the  parties,  and  that  said  physical  incapacity  of  the  libellee 
as  aforesaid  was  well  known  to  the  libellee  at  the  time  of  con- 
tracting said  marriage,  but  was  unknown  to  the  libellant. 
And  your  libellant  further  represents  that  she  is  informed 
and  believes  and  therefore  alleges  that  the  said  impotency 

and  physical  incapacity  of  the  said  still  exists  and 

is  incurable." 


No.  17. 

Impotency  of  Wife. 

"That  soon  after  said  marriage  was  celebrated,  the  libellant 
discovered  that  the  libellee,  at  the  time  bi  her  marriage  with 
[  r!60  ] 


FORMS. 

the  libellant  as  aforesaid,  was  impotent  in  this,  that  the  mouth 

of  the  vagina  of  the  said was,  and  still  is,  closed,  so 

as  to  prevent  copulation;  that  said  physical  incapacity  of  the 
libellee  as  aforesaid  was  well  known  to  the  libellee  at  the  time 
of  contracting  said  marriage,  but  was  unknown  to  the  libellant, 
and  that  the  libellant  has  been  informed  and  beheves  and 
therefore  alleges  that  said  physical  incapacity  of  the  libellee 
still  exists  and  is  incurable." 


No.  18. 

Order  of  Notice  on  Prayer  for  Custody,  Allowance,  etc. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.:  Superior  Court. 

A.  B. 

V. 

C.  B. 

On  the  foregoing  hbel  for  divorce  ordered,  that  the  hbellant 
give  notice  to  said  Ubellee,  C.  B.,  to  appear  at  Equity  Session, 
First  Division  of  said  Court,  at  the  Court  House  in  Boston, 
in  said  County  of  Suffolk,  on  November  17,  A,  D.,  1902,  at 
10  o'clock.  A,  M.,  by  serving  him  with  a  true  and  attested 
copy  of  said  libel  with  this  order  thereon,  forthwith,  that  he 
may  then  and  there  show  cause,  if  any,  why  the  prayers  of 
said  libel  for  the  custody  of  their  minor  children  during  the 
pendency  of  the  libel,  and  for  an  allowance  to  enable  said 
libellant  to  prosecute  said  libel  and  for  an  order  prohibiting 
libellee  from  imposing  any  restraint  upon  the  personal  liberty 
of  the  libellant  should  not  be  granted. 

By  the  Court. 

Clerk. 
[361] 


FORMS. 

No.  19. 

Summons. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.: 

To  the  Sheriffs  of  our  several  Counties,  or  their  Deputies  and 

the  Wardens,  Superintendents,  Masters  or  Keepers  of  our 

several  Penal  or  Reformatory  Institutions  or  their  Deputies. 

Greeting. 

We  command  you  to  summon  the  said if  he  may 

be  found  in  your  precinct,  to  appear  before  our  Justices  of  our 
Superior  Court,  at  Boston,  within  our  County  of  Suffolk,  on 

the  first  Monday  of next,  by  serving with 

an  attested  copy  of  this  Writ,  and  of  the  Libel  hereto  annexed, 

fourteen  days,  at  least,  before  said  first  Monday  of  

that  he  may  then  and  there,  show  cause  why  the  prayer  of 
said  Libel  should  not  be  granted. 

Hereof  fail  not,  and  have  you  there  this  Writ,  with  your 
doings  therein. 

Witness,  John  A.  Aiken,  Esquire,  at  Boston,  this 

day  of  in  the  year  of  our  Lord  one  thousand  nine 

hundred  and  four. 


No.  30. 

Order  of  Notice  by  Publication. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

Clerk's  Office,  Boston,  ,  A.  D.,  19—. 

On  the  filing  of  the  foregoing  libel,  it  is  ordered  that  the 
libellant  give  notice  to  the  said  libellee of  the  pend- 
ency thereof,  and  to  appear  before  said  Court  at  Boston, 
[362] 


FORMS. 

within  and  for  the  County  of  Suffolk,  on  the  first  Monday  of 

next,  by  causing  an  attested  copy  of  h —  said  Hbel 

with  this  order  thereon,  to  be  pubhshed  once  a  week,  three 

weeks  successively,  in  the  ,  a  newspaper  printed  in 

Boston,  in  the  County  of  Suffolk,  the  last  pubhcation  to  be 

fourteen  days  at  least  before  the  said  first  ^londay  of , 

and  by  sending  by  mail  to  the  last  known  address  of  the  said 
Ubellee  as  soon  as  may  be,  a  registered  letter  containing  an 
attested  copy  of  said  hbel  and  order  thereon;  or  by  causing 
the  said  libellee  to  be  served  with  an  attested  copy  of  said 
hbel  and  order  fourteen  days  at  least  before  said  first  Monday 

of  ,  that  the  said  hbellee  may  then  and  there  show 

cause  why  the  prayer  of  said  libel  should  not  be  granted. 
A  true  copy  of  libel  and  order  thereon. 
Attest: 

,  Clerk. 


No.  21. 

Order  of  Notice  by  Publication  and  Attachment  by  Trustee  Process. 

com:\ionwealth  of  Massachusetts. 

Suffolk,  ss.: 

Superior  Court  ,  A.  D.,  190-. 

Upon  the  hbel  aforesaid,  it  is  ordered  by  the  Court  that  the 
Libellant  notify  the  Libehee  to  appear  before  our  Justices  of 

said  Court,  at in  said  County,  on  the  first  Monday  of 

,  next,  by  causing  an  attested  copy  of  said 

libel  and  of  the  order  of  the  Court  thereon,  to  be  pubhshed 

in  the  ,  a  newspaper  pubhshed  in  ,  in  the 

County  of  ,  once  a  week,  three  weeks  successively, 

the  last  pubhcation  to  be  days  at  least  before  the 

said  last  mentioned  day,  that  he  may  then  and  there  show 
cause,  if  any  he  have,  why  the  prayer  m  said  hbel  set  forth 

[  363  ] 


FORMS. 

should  not  be  granted.  And  the  officer  serving  this  precept 
is  ordered  to  attach  the  goods  and  estate  of  the  said  Libellee 

to   the  value   of  dollars.     And  whereas,   the  said 

Libellant  says  that  the  said  Libellee  has  not  in  his  own  hands, 

and  possession,  goods  and  estate  to  the  value  of  

dollars  aforesaid,  which  can  be  come  at  to  be  attached,  but 
has  intrusted  to,  and  deposited  in  the  hands  and  possession 

of ,  Trustee    of  the  said  Libellee 's  goods,  effects  and 

credits,  to  the  said  value:  We  Command  you,  therefore,  that 
you  summon  the  said  Trustee  (if  he  may  be  found  in  your 
precinct),  to  appear  before  our  Justices  of  our  said  Court, 
to  be  holden  as  aforesaid,  and  show  cause,  if  any  he  ha — , 
why  execution  to  be  issued  upon  such  judgment  as  the  said 
Libellant  may  recover  against  the  said  Libellee  in  this  libel 
(if  any)  should  not  issue  against  his  goods,  effects,  or  credits 
in  the  hands  and  possession  of  the  said  Trustee   . 

And  have  you  there  this  writ,  with  your  doings  thereon. 

Witness,  John  A.  Aiken,  Esquire,  at  Boston,  the 

day  of  ,  in  the  year  of  our  Lord  one  thousand  nine 

hundred  . 


Clerk. 


No.  22, 


Order  for  Attachment  of  Real  and  Personal  Property  and  Attach- 
ment by  Trustee  Process. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.: 

In  Superior  Court,  Boston,  ,  A.  D.,  190-. 

And  in  order  to  secure  to  the  libellant  (and  to  such  children 
as  may  be  committed  to  her  care  and  custody)   a  suitable 
support  and  maintenance,  the  Sheriffs  of  our  several  counties, 
[364] 


FORMS. 

or  their  Deputies,  or  either  of  them,  are  hereby  directed  to 

attach  on  said  Hbel  the  real  or  personal  estate  of  said 

to  the  amount  of dollars,  conformable  to  the  Statutes 

in  such  case  made  and  provided. 

And  whereas  the  said  Ubellant  says  that  the  said 

has  not  in  his  own  hands  and  possession  goods  and  estate  to 
the  value  aforesaid  which  can  be  come  at  to  be  attached,  but 
has  intrusted  to  and  deposited  in  the  hands  and  possession 

of ,  Trustee    of  the  said  goods,  effects  and 

credits  to  the  said  value,  it  is  ordered  that  the  officer  serving 
this  order,  summon  the  said  supposed  Trustee  ,  if  he  may  be 
found  in  his  precinct,  by  serving  him  with  a  true  copy  of  said 

libel  and  this  order  thereon  fourteen  days  before  said 

to  appear  before  the  Justices  of  said  Court,  to  be  holden  as 
aforesaid,  to  show  cause  (if  any  — h —  have)  why  execution  to 
be  issued  on  such  decree  as  the  said  Court  may  pass,  should 

not  issue  against  the  goods  and  effects  of  said in  the 

hands  and  possession  of  the  said  supposed  Trustee  . 


Clerk. 


No.  23. 

Affidavit  of  Notice. 

COMMONWEALTH  OF  MASSACHUSETTS. 

,  ss.:  Superior  Court. 

,  Lihellant, 

V. 

,  Lihellee. 

AFFIDAVIT  OF  NOTICE. 

I,  ,  Attorney  for  the   above-named  Libellant,  on 

oath  do  certify,  that  I  have  served  the   above-named  libel, 

[365] 


FORMS. 


jiiul  llie  order  of  Court,  (lioroon,  as  Ihoroin  dircctod,  by  ^iviiip; 
notice  tluM-ool"  to  the  said  Libelee  by  caiksing  to  be  published 
ouee  a  week,  tlu-eo  weeks  suecessively,  in  the ,  a  news- 
paper printed  in  ,  in  the  County  of  ,  viz., 

on  the days  of  ,  A.  1).,  , 

an  attested  eopy  of  said  hbel  with  the  order  of  Court  thereon 
(the  three  newspapers,  containing  copies  of  said  publication 
on  said  dates  together  with  the  copy  of  the  libel,  and  order 
issutnl  from  the  Clerk's  ofhce  are  filed  herewith),  and  by  send- 
ing by  mail  on  the day  of to  the  last  known 

address  of  said  l.ibellee,'  a  registered  U^ttcM-,  containing  an 
attested  copy  of  said  libel,  and  order,  addressed  as  follows:— 


'Fhe  registry  receipt  signed  by  was  returned  to 

me  by   the  Post  Office  Officials  and  is  luMvto  annexed  and 


inarKeil 


The  said  registered  lett(M-  was  returned  to  me  by  the  Post 
Office  Officials  unclaimed  and  unopeneil,  and  is  hereto  annexed 
and  marked • 

Atti/.  for  Libellant. 
Suffolk,  w..*  A.  D.- 


Then   juM-sonally  ainieared  and   made  oath   that 

the  foregohig  statement  by  him  subscribed  is  true. 

Before  me . 

Justice  of  the  Peace. 


{  366  ] 


FORMS. 

No.  24. 

Afl&davit  of  Notice  to  Co-Respondent. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,   ss.:  Superior  Court. 
,  Lihellant, 

V. 

,  Lihellee. 


AFFIDAVIT  OF  NOTICE  TO  CO-IIK.SPONDENT. 

I,  ,  Attorney  for  the  above-named  Libellarit,  on 

oath,  do  certify  that  I  have  given  notice  of  said  Libel  to 

with  whom  said  Libellee  is  alleged,  in  said  Libel,  to  have  com- 
mitted Adultery,  by  sending  by  mail  on  the rlay  of 

to  the  last  kno^n  address  of  said  .  [;hj/.e 

where  said  Adultery  is  alleged  to  have  been  committed 


a  Registered  Letter   containing  an  Attested  Copy  of  said 

Libel,  and  the  Order  thereon,  addresvsed  as  follows: . 

The  Registry  Receipt  signed  by  was  returned  to 

me  by  the  Post  Office  Officials,  and  is  hereto  annexed  and 
marked 

The  said  Registered  Letter  was  returned  to  me  by  the  Post 
Office  Officials  unclaimed  and  unopened,  and  is  hereto  annexed 
and  marked 

AfJ.y.  for  L'lbeU/mt. 


Suffolk,  ss.:  A.  D.  . 

Then  personally  appeared and  made  oath  that  the 

foregoing  statement  by  him  subscribed  is  true. 

Before  me . 

Justice  of  the  Peace. 


[367] 


FORMS. 

No.  25. 

Order  Restraining  Libellee  from  Imposing  any  Restraint  Upon  the 
Personal  Liberty  of  the  Libellant. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

No. Divorce. 

M.  B.  A. 

V. 

W.  H.  A. 

RESTRAINING  ORDER. 

In  the  above-entitled  libel  for  divorce,  upon  the  petition 
of  the  said  Libellant,  M.  B.  A.,  it  is  ordered  that  the  said 
Libellee,  W.  H.  A.,  be  and  he  hereby  is  prohibited  from  im- 
posing any  restraint  upon  the  personal  Uberty  of  the  libellant. 

By  the  Court. 


Assistant  Clerk. 
Dated  Boston  the  3d  day  of  December,  A.  D.,  1902. 
(The  above  form  is  taken  from  the  original  papers.) 


No.  36. 

Order  as  to  Allowance. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss,:  Superior  Court. 

No. Divorce. 

A.  B.,  Libellant. 

V. 

C.  B.,  Libellee. 
[  368  1 


FORMS. 

ORDER  AS  TO  ALLOWANCE. 

And  now  upon  the  Libellee's  motion  for  allowance  in  the 
above-entitled  libel  for  divorce  it  is  ordered  that  the  Libellant 
pay  to  the  Clerk  of  this  Court  for  the  use  of  the  Libellee,  on  or 

before  the  day  of  ,  next  current  (if  next 

month)  (if  that  current  month),  otherwise,  A.  D.,  190-,  the 

sum  of  dollars,  to  be  paid  to  the  counsel  for  the 

Libellee  upon  said  counsel  showing  to  the  Clerk  subpoenas  for 
witnesses  intended  by  him  to  be  served  and  indicating  to  the 
Clerk  the  absolute  intention  of  the  Libellee  to  defend  the  said 

libel,  otherwise  said  sum  of dollars  is  to  be  returned 

to  the  said  Libellant. 

By    the   Court, 


Assistant  Clerk. 


No.  37. 

Libellee's  Motion  for  Allowance. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.;  Superior  Court. 

No. . 

,  Libellant, 

V. 

,  Libellee. 


APPLICATION  FOR  ALLOWANCE. 

Respectfully  represents  the  Libellee  that  she  be- 
lieves that  she  has  a  defence  to  this  hbel  and  intends  in  good 
faith  to  contest  it  and  to  use  for  such  defence  any  allowance 
made. 

24  [  369  ] 


FORMS. 


Wherefore  she  asks  an  allowance  to  enable  her  to  defend 
the  libel. 


Libellee. 
I  believe  the  above  statement  to  be  true. 


Libellee's  Attorney. 


Ordered,  that  the  Libellant  on  or  before  pay 

into  Court  the  sum  of  dollars  as  an  allowance  to 

said  Libellee.     Said  sum  may  be  paid  by  the  Clerk  to  the 
Libellee's  Attorney. 


Clerk. 


No.  38. 

Alimony  Pendente  Lite  and  Counsel  Fees. 

COMMONWEALTH  OF  MASSACHUSETTS. 

— ,  ss.:  Superior  Divorce  Court 


A,B. 

V. 

CD. 

Now  comes  the  Libellant,  and  moves  that  the  Libellee  pay 
into  court  a  reasonable  sum  for  the  payment  of  expenses  in- 
curred and  to  be  incurred  by  the  Libellant  in  preparing  and 
prosecuting  the  above-entitled  suit,  and  for  the  fees  of  her 
counsel,  and  further  sum  for  the  maintenance  and  support 
of  the  Libellant  during  the  pendency  of  the  hbel. 


[370] 


FORMS. 

No.  39. 

Form  of  Execution  for  Alimony,  Weekly  Due  and  Unpaid. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.: 

To  the  Sheriffs  of  our  several  counties,  or  their  Deputies,  or 
any  Constable  at  our  City  of  Boston. 

Greeting  : 

Whereas:  Mary  M.  Smith  of  Boston  in  our  County  of 
Suffolk,  Libellant  by  the  consideration  of  our  Justices  of 
our  Superior  Court,  holden  at  Boston,  for  and  within  our 
county  of  Suffolk,  aforesaid,  to  wit,  on  the  twenty-sixth  day 
of  December,  A.  D.,  190-,  by  a  decree  in  a  Ubel  for  divorce, 
recovered  judgment  against  John  L.  Smith  of  said  Boston, 
Libellee,  in  the  sum  of  eight  dollars  per  week,  the  same  to  be 
payable  weekly,  the  first  payment  to  be  made  upon  the  first 
day  of  January,  A.  D.,  190-,  as  aUmony  for  the  support  of 
said  Libellant  and  the  minor  children  of  said  Libellant  and 
said  Libellee,  and  whereas  on  the  twenty-first  day  of  April, 
A.  D.,  190-,  upon  motion  of  said  Libellant  it  was  by  our  said 
Court  ordered  that  execution  issue  forthwith  for  the  sum  of 
sixty-nine  dollars  which  sum  then  appeared  to  be  due  and 
unpaid,  as  to  us  appears  of  record,  whereof  execution  re- 
mains to  be  done. 

We  command  you,  therefore,  that  of  the  goods,  chattels,  or 
lands  of  the  said  judgment  debtor  ,  within  your  precinct,  you 
cause  to  be  paid  and  satisfied  unto  the  said  judgment  creditor  , 
at  the  value  thereof  in  money,  the  aforesaid  sum,  being  sixty- 
nine  dollars  in  the  whole  and  thereof  also  to  satisfy  yourself 
for  your  own  fees;  and  for  want  of  goods,  chattels  or  lands  of 
the  said  judgment  debtor  to  be  by  him  shown  unto  you,  or 
found  within  your  precmct  to  the  acceptance  of  the  said  judg- 
ment creditor  to  satisfy  the  sums  aforesaid  with  interest  as 
aforesaid  we  command  you  to  take  the  body  of  the  said  judg- 

[371] 


FORMS. 


ment  debtor,  and  him  commit  unto  our  jail  in  Boston,  in  our 
County  of  Suffolk,  or  any  jail  in  your  precinct  aforesaid,  and 
detain  in  your  custody  within  our  said  jail,  until  he  pay  the 
full  sums  above  mentioned  with  your  fees,  or  that  he  be  dis- 
charged by  the  said  judgment  creditor,  or  otherwise  by  order 
of  law.  Hereof  fail  not  and  make  return  of  this  writ,  with 
your  doings  thereon,  into  the  Clerk's  office  of  our  said  Superior 
Court  at  Boston,  within  our  County  of  Suffolk  aforesaid,  in 
sixty  days  after  the  date  hereof. 

Witness,  John  A.  Aiken,  Esquire,  at  Boston,  the  twenty- 
second  day  of  April,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  two. 


Glerk. 


No.  30. 

Petition  for  Contempt  for  Non-Payment  of  Alimony. 

Superior  Court 
Divorce  Session. 

Now  comes ,  the  Libellant  in  the  above  case,  and 

says  that  on ,  190-,  a  decree  for  alimony  was  entered 

requiring  the  Libellee  to  pay  to  the  Libellant  $ forth- 
with, and  the  further  sum  of  % on  the  first  secular 

day  of  each  and  every  month  thereafter  until  the  further  order 
of  the  Court;  that  the  Libellee  has  not  made  said  payments  as 
required  by  the  decree. 

Wherefore  the  Libellant  moves  that  the  Libellee, , 

be  summoned  into  Court  to  show  cause  why  he  should  not  be 
adjudged  in  contempt. 

[372] 


FORMS, 

Suffolk,  ss.:  ,  190-. 

Personally  appeared  the  above-named  and  made 

oath  that  the  statements  above  subscribed  by  her  are  true 
so  far  as  the  same  depend  on  her  knowledge,  and  that  so  far 
as  the  same  depend  on  information  and  belief  she  beheves 
them  to  be  true. 

Before  me,  

Justice  of  the  Peace. 


No.  31. 


Order  of  Notice  on  Petition  for  Contempt  for  Non-Payment  of 

Alimony. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.:  Superior  Court, ,  A.  D.,  190-. 

On  the  foregoing  petition  it  is  ordered,  that  the  petitioner 

give  notice  to  the  respondent,  ,   to  appear  at  the 

,  of  said  Court,  at  the  Court  House  in  in 

said  County  of ,  on , A.  D.,  190-, 

at  o'clock,  A.  M.,  by  serving  him  with  a  true  and 

asserted  copy  of  said  petition  with  this  order  thereon,  forth- 
with, that  he  may  then  and  there  show  cause,  if  any,  why  said 
petition  should  not  be  granted. 

By  the  Court, 

Clerk. 


[  373  ] 


FORMS. 

No.  33. 

Held  in  Contempt ;  Failure  to  Pay  Alimony. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

On  this  thirteenth  day  of  June,  A.  D.,  1904,  personally  ap- 
peared before  said  Court,  in  the  Divorce  Session  thereof,  at 
Boston,  P.  A.  C,  of  Quincy,  in  the  County  of  Norfolk,  the 
respondent  in  a  petition  for  contempt  for  failure  to  pay  alimony 
brought  by  F.  H.  C,  of  said  Boston,  and  filed  in  the  libel  for 
divorce  numbered  1183  of  the  current  records  and  files  of  said 
Court,  wherein  said  F.  H.  C.  is  Libellant,  and  said  P.  H.  C. 
is  Libellee,  and  acknowledged  himself  indebted  to  the  Com- 
monwealth of  Massachusetts  in  the  sum  of  five  hundred  dol- 
lars, to  be  levied  on  his  goods  and  estate,  and  in  want  thereof 
upon  his  body,  if  default  be  made  in  the  performance  of  the 
condition  here  underwritten. 

The  condition  of  the  above-written  recognizance  is  such 
that  WHEREAS  on  the  eleventh  day  of  February,  A.  D.,  1904, 
on  said  libellant's  petition  for  contempt,  it  was  by  our  said 
Court  ordered  that  said  P.  A.  C.  be  notified  to  appear  before 
said  Court  on  the  seventeenth  day  of  February,  A.  D.,  1904, 
to  show  cause,  if  any  he  had,  why  he  should  not  be  proceeded 
against  for  the  contempt  of  Court  alleged  in  said  petition, 
and  said  P.  A.  C,  although  duly  notified,  did  not  appear  as 
directed,  and  on  said  seventeenth  day  of  February,  A.  D.,  1904, 
by  order  of  said  Court,  a  capias  issued  directing  the  Sheriff 
of  Suffolk  County  and  his  deputies  to  arrest  said  P.  A.  C, 
and  bring  him  before  said  Court  to  answer  for  said  alleged 
contempt,  and  on  this  thirteenth  of  day  June,  A.  D.,  1904, 
said  P.  A.  C.  was  brought  before  this  Court  in  the  custody  of 
one  of  said  deputies. 

Now,  therefore,  if  the  said  P.  A.  C.  shall  appear  upon  any 
day  when  ordered  and  from  day  to  day  thereafter,  to  answer 
[374] 


FORMS. 


said  petition  of  said  F.  H.  C,  then  this  recognizance  to  be 
void,  otherwise  it  is  to  remain  in  full  force  and  virtue. 

By  the  Court. 
(The  above  form  is  taken  from  the  original  paper.) 


No.  33. 

Motion  to  Transfer  Suit  to  Another  County. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk  ss.:  Superior  Divorce  Court. 

A.  B. 

V.  Divorce  No. . 

P  B 

MOTION. 
And  now  comes  the  Libellant  (or  Libellee)  and  moves  the 

Honorable  Court  that  may  be  allowed  to  transfer  the 

above-entitled  action  to  the  County  of  ,  inasmuch 

as  the  Libel  was  brought  in  the  wrong  County. 

Clerk. 


No.  34. 

Motion  for  Specifications. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

No. Divorce. 

A.B.  \ 

V.     >   Divorce. 
C.  B.  ) 

Now  comes ,  named  as  Libellee  in  the  above  libel 

[  375  ] 


FORMS. 

and  moves  that  the  Ubellant  be  required  to  file  specifications 
stating  in  some  detail  the  dates,  or  approximate  dates,  of  the 
several  acts  of  cruelty  reUed  upon,  and  to  state  the  acts  which 

claims   constituted   cruel   and   abusive   treatment,   and 

also  give  in  detail  the  places  where  these  alleged  acts  of  cruelty 
took  place,  giving  street  and  number,  or  if  at  lodging  or  board- 
ing houses,  the  name  of  the  person  or  persons  owning  or  con- 
ducting such  lodging  or  boarding  house. 


Clerk. 


No.  34a. 

Plea  to  the  Jurisdiction. 

Now  comes  the  libellee,  and  relying  on  the  special  appear- 
ance filed  in  his  behalf,  and  without  waiving  the  same,  and 
without  submitting  himself  in  any  way  to  the  jurisdiction  of 
this  court,  says  that  the  court  has  no  jurisdiction  of  him  in 
the  matter  of  the  said  Hbel  for  divorce. 

Wherefore  said  libel  should  be  dismissed. 

(This  form  is  taken  from  the  original  papers.) 


No.  35. 

Connivance. 


"The  Libellee  says  that  if  anything  occurred  between  her 

and  said which  might  appear  to  lead  to  the  inference 

that  she  had  committed  the  crime  of  adultery  with  said , 

the  same  was  caused,  procured  and  connived  at  by  the  Libel- 

lant,  and  that  said  was  brought  by  the  Libellant 

[  376  ] 


FORMS, 


to  the  house  in  which  the  Libellant  and  the  Libellee  resided 

in  said  ,  ostensibly  as  a  lodger,  but  really  for  the 

purpose  of  getting  into  such  a  situation  with  the  Libellee  as 

would  lead  to  the  inference  that  said had  committed 

adultery  with  her." 


No.  36. 

Collusion. 


"The  Libellee  says  that  if  anything  occurred  between  her 

and  said which  might  appear  to  lead  to  the  inference 

that  she  had  committed  the  crime  of  adultery  with  said , 

the  same  was  committed  with  the  knowledge  and  consent  of 
the  Libellant,  and  that  the  Libellant  and  Libellee  collusively 
agreed  that  the  acts  should  be  committed  or  appear  to  have 
been  committed  for  the  purpose  of  enabling  the  Libellant  to 
obtain  a  divorce." 


No.  37. 

Condonation. 


"And  now  comes  the  Libellee  in  the  above-entitled  action 
and  alleges  that  since  the  fiHng  of  said  Ubel,  the  Libellant  has 
voluntarily  cohabited  as  his  wife  (or  her  husband)  and  thereby 
condoned  the  offence  alleged  in  the  libel." 


[377] 


FORMS. 

No.  37a. 

General  Denial  and  Condonation. 

"The  libellee  denies  each  and  every  allegation  of  cause  for 
divorce  in  the  Hbel  contained,  and  further  answering  says  that 
if  any  such  cause  or  causes  occurred  they  have  since  been 
condoned  by  the  Hbellant." 


No.  38. 

Recrimination. 

"The  Libellee  denies  all  the  allegations  contained  in  the 
libel  and  says  that  the  Libellant,  at  divers  times  before  the 
fihng  of  her  said  Ubel,  committed  the  crime  of  adultery  with 

one ,  and  with  divers  other  persons,  whose  names  are 

unknown  to  the  Libellee  but  by  information  of  the  name  of 

;  wherefore  he  says  that  the  prayer  of  the  hbel  should 

not  be  granted." 


No.  39. 


Order  of  Court  for  the  Examination  of  Person  Alleged  to  be 
Im^potent. 

STATE  OF  VERMONT. 
County  of  Essex.  County  Court. 

Le  Barron  \ 

V.       >    Divorce. 
Le  Barron  ) 

ORDER  OF  THE  COURT. 

It  is  ordered,  this day  of ,  1904,  by  tlie 

[378] 


FORMS. 

Court,  that  a  commissioner  be  appointed  to  take  the  proofs 
in  relation  to  the  alleged  impotence  of  the  defendant  at  the 

time  of  the  said  marriage  between  the  said and  the 

petitioner. 

And  it  is  further  ordered  that  the  defendant  submit ^self 

to  a  personal  examination  by  such  physicians  and  surgeons, 
and  at  such  time  and  under  such  regulations  as  shall  be  se- 
lected and  prescribed  by  the  said  commissioner,  for  the  pur- 
pose of  determining  the  truth  of  the  said  allegation  in  said 
petition. 

The  commissioner  will  select  such  number  of  competent  and 
disinterested  physicians  and  surgeons,  and  prescribe  such  rules 
and  regulations  for  such  examination  so  as  to  secure  the  ut- 
most fairness,  and  will  report  all  his  proceedings  in  relation 
thereto  with  the  evidence  of  all  such  medical  examiners  as 
to  the  facts  and  results  of  said  examination,  and  return  the 
same,  together  with  other  proofs  taken  by  him,  to  the  court. 

(This  form  is  taken  from  Le  Barron  v.  Le  Barron,  35  Vt. 
,365,  at  page  372.) 


No.  40. 

Decree,  Libel  Continued  After  Hearing,  with.  Custody  of  Children. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Divorce  Court. 

J.  K. 

V. 

P.  K. 

ORDERED. 

In  the  above-entitled  libel  for  divorce,  after  hearing  the 
same  together  with  the  libel  of  said  J.  K.  against  said  P.  K., 
it  is  ordered  as  follows: 

[379] 


FORMS. 


The  libel  stands  continued.  The  Libellee  J.  K.  is  to  have 
the  custody  of  the  children,  I.  M.  K.  and  G.  H.  K.,  who  are  not 
to  be  removed  from  the  Commonwealth.  The  Libellant  is  to 
have  a  reasonable  opportunity  to  have  the  children  visit  him 
at  his  home  at  reasonable  times.  The  hbellant  is  to  pay  to 
the  Libellee  five  dollars  each  week  for   the   support   of    the 

children. 

By  the  Court. 

,  Assistant  Clerk. 

Dated  at  Boston  the day  of ,  A.  D. . 

(The  above  form  is  taken  from  the  original  papers.) 


No.  41. 

Decree  Dismissing  Libel,  the  Marriage  Being  Void. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.:  Superior  Court. 

No. Divorce. 

A.  R.  G.,  Libellant, 

V. 

M.  F.  G.,  Libellee. 

DECREE. 

This  cause  came  on  to  be  heard,  and  was  argued  by  coun- 
sel, and  thereupon  upon  consideration  thereof,  it  is  ordered 
and  decreed  that  the  said  libel  be  and  the  same  hereby  is 
dismissed  for  the  reason  that  the  marriage  between  the  said 
A.  R.  G.  and  M.  F.  G.  was  void,  being  made  by  both  parties, 
in  evasion  of  the  laws  of  this  Commonwealth. 

By  the  Court. 
,  Assistant  Clerk. 

Dated  at  Boston  the day  of ,  A.  D. . 


(The  above  form  is  taken  from  the  original  papers.) 
[380] 


FORMS. 
No.  4  la- 
Decree  Dismissing  Libel  without  Prejudice. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

No. Divorce. 

A.  B. 

V. 

C.  D. 

Upon  hearing  the  above-entitled  Ubel  for  divorce,  it  is 
ordered  and  decreed  that  said  libel  be,  and  the  same  hereby 
is,  dismissed  without  prejudice. 

Dated  the day  of ,  A.  D.  190-. 

By  the  Court. 
,  Clerk. 


No.  41b. 

Decree  Dismissing  Libel  for  Want  of  Jurisdiction. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

No. Divorce. 

A.  B. 

V. 

C.  D. 

DECREE. 

This  cause  came  on  to  be  heard  upon  the  plea  to  the  juris- 
diction, and  was  argued  by  counsel,  and  thereupon  upon  con- 
sideration thereof,  it  is  ordered,  adjudged,  and  decreed  that 

[381] 


FORMS. 

the  plea  to  the  jurisdiction  be  sustained,  and   that  for   that 
reason  alone  said  Hbel  be,  and  the  same  hereby  is,  dismissed. 

Dated  at  Boston  the day  of ,  A,  D. . 

By   the   Court. 
,  Clerk. 


No.  41c. 

Decree  of  Validity. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court 

No. ^Divorce. 


DECREE. 

This  cause  came  on  to  be  heard,  and  was  argued  by  counsel, 
and  thereupon  upon  consideration  thereof,  it  is  ordered  and  de- 
creed that  the  marriage  between  the  above  named 

and is  valid  and  the  same  is  hereby  affirmed. 

Dated  at  Boston  the day  of ,  A.  D., . 


[  382  ] 


FORMS. 

No.  43. 

Decree  Nisi. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.:  Superior  Court. 

,  Lihellant,   \ 

V.  [    No. 
,  Lihellee.         ) 


DECREE  NISI. 
In  the  above-entitled  libel  for  divorce,  it  is  now  ordered  and 
decreed,  nisi,  that  the  bond  of  matrimony  heretofore  entered 

into  between  the  said and be,  for  the  cause 

of  the  of  the  said  Libellee,  as  alleged  in  said  libel 

dissolved: 


this  decree  to  become  absolute,  after  the  expiration  of  six 
months  from  the  entry  of  this  decree,  unless  the  Court  shall 
have  for  sufficient  cause,  on  apphcation  of  any  party  inter- 
ested, otherwise  ordered. 

By  the  Court. 

,  Clerk. 


[383] 


FORMS. 

No.  43. 

Decree  Nisi  After  Appointment  of  Guardian  Ad  Litem. 
(Mass.  Law  of  1902.) 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Divorce  Court. 

C.  M.  G.,  Lihellant, 

V. 

H.  J.  G.,  Libellee. 

DECREE    NISI. 

This  cause  came  on  to  be  heard  upon  the  suggestion  of  said 
Libellant  that  this  Court  appoint  a  guardian  ad  Utem  of  said 
Libellee,  and  it  appearing  that  said  Libellee  was  an  inmate 
of  the  Massachusetts  Hospital  for  Dipsomaniacs  and  Inebri- 
ates, and  that  there  might  be  some  doubt  as  to  the  sanity  of 

said  this  Court  appointed   of  

guardian  ad  Utem  of  said for  the  purpose  of  investi- 
gating and  reporting  as  to  the  sanity  of  said  and 

as  to  the  truth  of  the  matters  alleged  in  said  Ubel. 

And  thereafterwards  the  said  after  having  made 

investigation,  especially  as  to  the  sanity  of  the  said , 

filed  his  report  in  writing,  stating  that  said was  sane 

and  desired  to  contest  said  Ubel,  and  thereupon  said 

was  notified  to  appear  before  this  Court  and  did  so  appear 
and  upon  examination  as  to  his  sanity,  this  Court  adjudged 
said to  be  sane. 

And  now,  said  cause  having  been  heard  and  tried  upon  the 
merits,  it  is  ordered  and  decreed  nisi,  that  the  bond  of  matri- 
mony heretofore  entered  into  between  the  said  C.  M.  G.  and 
H.  J.  G.  be,  for  the  cause  of  the  gross  and  confirmed  habits 
of  intoxication  on  the  part  of  the  said  libellee  as  aUeged  in 
said  libel  dissolved,  this  decree  to  become  absolute  after  the 
expiration  of  six  months  unless  the  Court  shall  have  for  suf- 
[384] 


FORMS. 


ficient  cause,  upon  application  of  any  party  interested,  other- 
wise ordered. 

(This  form  is  taken  from  the  original  papers.) 


No.  43a. 

Objections  to  Decree  Absolute. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

No. Divorce. 

A.  B.,  Libellant, 

V. 

C.  D.,  Libellee. 

OBJECTIONS  TO  DECREE  ABSOLUTE. 
Now  comes  the  hbellee  and  objects  to  the  decree  nisi  here- 
tofore entered  in  said  hbel  becoming  absolute,  and  for  causes 
of  objection  says: 

1.  That  he  never  was  served  with  any  process  or  had  any 
notice  of  the  pendency  of  said  libel  until  after  the  hearing  upon 
the  same,  and  that  he  only  learned  of  the  same  by  reading  in 
a  newspaper  that  a  decree  of  divorce,  7iisi,  had  been  granted 
in  favor  of  his  wife,  the  said  Ubellant. 

2.  That  he  beheves  he  has  a  good  defence  to  said  hbel  and 
in  good  faith  mtends  to  defend  the  same. 


Libellee. 


-,  ss.: , ,  190-. 


Then  personally  appeared  the  said and  made  oath 

that  the  foregoing  statement  by  him  subscribed  was  true. 


Justice  of  the  Peace. 
25  [  385  ] 


FORMS. 


jsj-QTE — ^Where  the  libellant  has  committed  adultery  after 
the  decree  nisi  the  objections  should  be  in  the  form  above 
given,  but  the  allegation  would  be  simply : 

''That  at  divers  times  and  places  since  the  granting  of  said 

decree,  nisi,  and  particularly  on  or  about  the day  of 

,  190-,  in  Street  in  ,  the  libellant 

has  committed  adultery  with  one  ." 


No.  44. 


Plea  of  Collusion  to  Prevent  a  Decree  Nisi  from  Being  Made 
Absolute, 

"That  the  said ,  the  Libellee,  was  aware  that  the 

Libellant  had  committed  adultery  with at 

and,  nevertheless,  collusively  agreed  with  the  Hbellant  not  to 
defend  the  suit,  in  order  that  she  might  obtain  a  divorce." 


No.  45. 

Order  that  Decree  Nisi  Shall  Not  Become  Absolute. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

M.  B.  R.,  Libellant, 

V. 

M.  R.,  Libellee. 

ORDER. 

In  the  above-entitled  Ubel  for  divorce,  it  is  ordered  that 

the  decree  nisi  granted  in  said  libel  on  the  twenty-ninth  day 

of  January,  A.  D.,  1904,  shall  not  become  absolute  until  further 

order  of  the  Court,  and  that  said  Libellant,  M.  B.  R.,  be  notified 

[386] 


FORMS, 


by  an  officer  of  said  Court  to  appear  before  our  Justices  of 
our  said  Superior  Court,  in  the  Equity  Session,  the  First 
Division  thereof,  on  Saturday,  the  twenty-third  day  of  April, 
A.  D.,  1904,  at  ten  o'clock,  A.  M.,  by  serving  her  with  a  copy 
of  this  order  forthwith  that  she  may  then  and  there  show  cause, 
if  any  she  have,  why  said  decree  nisi  should  not  be  vacated, 
and  said  Ubel  dismissed. 

By  the  Court. 

,  Assistant  Clerk. 

Dated  at  Boston  the  sixteenth 
day  of  April,  A.  D.,  1904. 
(The  above  form  is  taken  from  the  origmal  papers.) 


No.  46. 

Certificate  of  Decree  of  Divorce  (Absolute). 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.: 
1  hereby  certify  that  at  the  Supreme  Court  holden  at 

Boston,  within  and  for  the  County  of  Suffolk,  on  the 

(Jay  of  ,  A.  D.,  ,  a  divorce  from  the  Bond  of 

Matrimony — nisi — was  decreed  by  the  Court,  between 

of ,  Libellant,  and of ,  Libellee,  in 

favor  of  said  Libellant,  for  the  cause  which  is  fully  set  forth 
in  the  hbel  on  file  in  said  court,  to  wit: 


to  become  absolute  after  the  expiration  of  six  months,  unless 
the  Court  shall  have  for  sufficient  cause  on  apphcation  of  any 
party  interested,  otherwise  ordered. 

And  on  the day  of ,  A.  D., ,  the  said 

[387] 


FORMS. 


six  months  having  expired,  and  the  Court  not  having  other- 
wise ordered,  said  decree  become  absolute. 
In  testimony  whereof  I  have  hereunto  set  my  hand,  and 

affixed  the  seal  of  said  Court,  at  Boston,  this 

day  of ,  A.  D. . 


Clerk. 


No.  47. 
Decree  of  Divorce. 

Form  of  written  decree  used  in  Arizona,  California,  Idaho, 
Montana,  Nevada,  Utah,  and  a  few  of  the  other  western  states. 

In  the Court  of  the  County  of State  of . 

Present:  Hon.  ,  Judge. 

Mary  Brown    \ 

V.  >    Decree  of  Divorce. 

John  Brown    ) 

This  cause  coming  on  to  be  heard  this  fifteenth  day  of  Au- 
gust, 1904,  upon  the  complaint  herein  taken,  as  confessed  by 
the  defendant  (whose  default  for  not  answering  had  been  duly 
entered)  upon  the  proofs  taken  herein,  and  upon  report  of 
John  Smith,  referee  in  this  cause,  to  whom  it  was  referred  by 
order  of  this  Court  duly  made  the  first  day  of  August,  1904, 
to  take  the  proofs  of  the  facts  set  forth  in  the  complaint  and 
to  report  the  same  to  the  Court,  and  the  said  referee  having 
taken  the  testimony  by  written  questions  and  answers  and 
reported  the  same  to  this  Court,  on  the  twelfth  day  of  August, 
1904,  from,  which  it  appears  that  all  the  material  allegations 
of  the  complainant  are  sustained  by  testimony  free  from  all 
legal  exceptions  as  to  its  competency,  admissibility  and  suffi- 
[388] 


FORMS. 

ciency,  and  it  also  appearing  to  said  Court  that  said  defendant 
was  duly  served  with  the  summons  and  all  and  singular  the 
law  and  the  premises  being  by  the  Court  here  understood  and 
fully  considered. 

Wherefore  it  is  here  ordered,  adjudged,  and  decreed,  and 
this  does  order,  adjudge,  and  decree,  that  the  marriage  be- 
tween the  said  plaintiff  Mary  Brown  and  the  said  defendant 
John  Brown  be  dissolved,  and  the  same  is  hereby  dissolved 
and  the  said  parties  are,  and  each  of  them  is,  freed  and  ab- 
solutely released  from  the  bonds  of  matrimony,  and  all  the 
obligations  thereof. 

And  it  is  further  ordered  and  decreed  that  the  custody  of 
the  children  of  said  marriage,  to  \vit,  Deha  Brown,  aged 
sixteen  years,  and  Peter  Brown,  aged  seven  years,  be  and  the 
same  is  hereby  awarded  to  the  plaintiff. 

Done  in  Open  Court  this  fifteenth  day  of  August,  1904. 


Judge. 
This  is  a  true  copy  of  the  decree 
of  divorce. 


Clerk. 


No.  48. 

Decree  of  Divorce  a  Mensa  et  Thoro  (from  Bed  and  Board). 

(After  usual  headings.)  "  It  is  thereupon  ordered,  adjudged, 
and  decreed  that  the  plaintiff  and  defendant  be  separated 
from  bed  and  board  forever;  provided,  however,  that  the 
parties  may  at  any  time  hereafter,  by  their  joint  and  mutually 
free,  voluntary  act,  apply  to  the  Court  for  leave  to  be  dis- 
charged from  this  decretal  order. 

[  389  ] 


FORMS. 

"  And  it  is  hereby  declared  to  be  the  duty  of  each  of  them  to 
live  chastely  during  their  separation,  and  that  it  will  be  crimi- 
nal, and  an  act  void  in  law,  for  either  of  them,  during  the  Ufe 
of  the  other,  to  contract  matrimony  with  any  other  person. 
And  it  is  further  ordered,  etc.,  that  the  plaintiff,  according 
to  the  prayer  of  her  bill,  shall  be  entitled  to,  and  charged  with, 
the  custody,  care  and  education  of  the  infant  son  of  the  parties 
in  the  pleadings  mentioned,  provided,  always,  that  this  order 
for  custody,  care  and  education  of  the  said  infant,  may,  at  any 
time  hereafter,  be  modified,  varied,  or  annulled,  upon  suffi- 
cient cause  shown.  And  it  is  furthered  ordered,  etc.,  that 
the  defendant  pay  to  the  plaintiff  $200  a  year,  to  be  computed 
from  the  date  of  this  decree,  in  half  yearly  payments,  to  be 
appUed  towards  the  support  and  maintenance  of  the  plain- 
tiff and  her  son,  and  that  this  allowance  is  to  continue  until 
further  order  of  the  Court  and  be  subject  to  variation,  as 
further  circumstances  may  require,  and  it  is  further  ordered, 
that  the  defendant  pay  to  the  plaintiff  the  costs  of  this  suit, 
to  be  taxed,  and  that  she  have  execution  therefor,  according 
to  the  course  and  practice  of  the  Court." 

(This  decree  was  entered  in  the  case  of  Barrere  v.  Barrere, 
4  Johns.  Ch.  [N.  Y.]  187  at  page  198.  This  was  a  divorce  from 
bed  and  board  on  the  grounds  of  cruelty.) 


[  890  ] 


FORMS. 

No.  49. 

Order  to  Produce  Child  in  Court. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.;  Superior  Court. 

No. Divorce. 

E.  E.  D.,  Petitioner, 

V. 

G.  W.  D.,  Respondent. 

ORDER  TO  PRODUCE  CHILD  IN  COURT. 
In  the  above-entitled  petition,  the  said  respondent,  G.  W.  D., 
be  and  he  hereby  is  directed  to  produce  the  body  of  R.  E.  D., 
the  minor  child  of  said  E.  E.  D.  and  G.  W.  D.,  forthwith,  before 
a  Justice  of  this  Court,  to  await  the  decree  of  this  Court. 

By  the  Court. 

,  Assistant  Clerk. 

Dated  at  Boston  the  twenty-seventh 
day  of  May,  A.  D.,  1903. 
(The  above  form  is  taken  from  the  original  papers.) 


No.  50. 

Habeas  Corpus. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.: 

To  the  Sheriffs  of  our  several  Counties  and  their  respective 
Deputies. 

Greeting  : 
Whereas:  E.  E.  D.  of  Boston  in  our  County  of  Suffolk  has 
brought  a  petition  before  the  Justices  of  our  Superior  Court 
within  and  for  said  County  of  Suffolk  against  her  former  hus- 

[391] 


FORMS. 

band,  G.  W.  D.,  in  which  petition  it  is  alleged  that  R.  E.  D., 
the  minor  child  of  said  E.  E.  D.  and  G.  W.  D.  is  now  in  the 
custody  and  control  of  said  G.  W.  D.,  the  custody  of  which 
child  the  petitioner  asks  that  the  Court  may  decree  to  her. 

Now,  therefore,  we  command  you  that  the  body  of  the  said 
R.  E.  D.  you  take  and  have  before  a  Justice  of  our  said  Superior 
Court,  now  holden  at  Boston,  within  and  for  the  County  of 
Suffolk,  immediately  after  the  receipt  of  this  writ,  to  do  and 
receive  what  our  said  Justices  shall  then  and  there  consider 
concerning  said  minor  child,  R.  E.  D.,  in  this  behalf. 

And  have  you  here  this  writ,  with  your  doings  therein. 

Witness,  Albert  Mason,  Esquire,  at  Boston  the  twenty- 
sixth  day  of  May  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  three. 

George  P.  Drury, 
Assistant  Clerk. 

(The  above  form  is  taken  from  the  original  papers.) 


No.  51. 

Decree  Awarding  Temporary  Custody  of  Child. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Superior  Court. 
Suffolk,  ss.:  No. Divorce. 


Divorce. 


DECREE. 
"This  case  came  on  to  be  heard  on  the  motion  of  the  Libel- 

lant  for  the  temporary  custody  of  the  child, ,  and  was 

[  392  ] 


FORMS. 

argued  by  counsel.  And  thereupon,  after  consideration  there- 
of, it  is  Ordered,  adjudged  and  decreed: 

"  That  the  Libellee  (or  Libellant) ,  be  and  hereby  is 

ordered  to  surrender  the  possession  of  said  cliild  to  Libellee 

(or  Libellant)  ,  to  be  taken  by  h —  to  h —  home  in 

the  City  (or  town)   of  and  there  to  remain  until 

further  orders  of  the  court.  The  Libellee  (or  Libel- 
lant) shall  have  the  privilege  of  seeing  said  child  at  all  reason- 
able and  proper  times." 

By  the  Court. 


Clerk. 


No.  52. 

Agreement  for  Third  Party  to  Have  Care  and  Custody  of  Child. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.;                                   Superior  Divorce  Court. 
No. . 


PETITION. 

Your  petitioners, ,  Libellant  and ,  Libellee, 

in  the   above-entitled    action,   respectfully  petition   this 
Honorable  Court  to  decree  the  care  and  custody  of  our 

child,  ,  born ,  A.  D.,  1904,   to  , 

and of in  the  County  of and 

Commonwealth  of  Massachusetts. 


Libellant. 


Libellee. 
[  393  ] 


FORMS. 


DECREE. 
This  petition  came  on  to  be  heard  on  motion  of  the  Libellant 
and  Libellee,  who  were  represented  by  Counsel.    And  there- 
upon, after  consideration  it  is  ordered  and  decreed  that  the 

care  and  custody  of  the  said be  and  hereby  is  decreed 

to of in  the  county  of and  Com- 
monwealth of  Massachusetts.     It  is  ordered  and  decreed  that 

the  mother  and the  father  of  said 

shall  be  permitted  to  see  said  child  at  all  reasonable  time  or 
times  until  further  order  of  the  Court. 

Justice  of  the  Superior  Court. 


No.  53. 

Decree  for  Custody  of  Children. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.:  Superior  Court. 

No. Divorce. 

B.  P.  C,  Libellant, 

V. 

F.  S.  C,  Uhellee. 

ORDER  AS  TO  CUSTODY  OF  CHILD. 
In  the  Hbel  aforesaid,  upon  the  motion  of  the  Libellant,  it 
is  ordered  that  the  custody  of  the  mmor  child,  F.  C,  be,  and 
the  same  hereby  is  given  to  the  libellant,  B.  P.  C,  until  the 
further  order  of  the  Court,  and  the  said  Libellee,  F.  S.  C,  his 
agents  and  attorneys,  are  hereby  enjoined  and  commanded 
to  desist  and  refrain  from  interfering  with  the  Libellant's 
[394] 


FORMS. 

possession  and  custody  of  said  minor  child  and  from  exercising 
any  control  over  said  child. 

By  the  Court. 

Dated  at  Boston  this day 

,  A.  D. . 

(The  above  form  is  taken  from  the  original  papers.) 


No.  54. 

Decree  for  Costs. 

"It  is  ordered  that  the  Libellee  pay  to  the  Libellant,  the 
costs  of  this  suit,  to  be  taxed,  and  that  she  have  execution 
therefor,  according  to  the  course  and  practice  of  the  Court." 


No.  55. 

Agreement  to  Modify  Decree. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  .  Superior  Court. 

No. .  Libel  for  Divorce. 

A.  B. 

V. 

C.  D. 

In  the  above-named  case  it  is  agreed  that  the  decree  hereto- 
fore entered  therein  may  be  modified  substantially  as  follows: 

Whereas, ,  the  LibeUee  in  said  action,  has  this  day 

paid  to  ,  the  Libellant,  the  sum  of  $ ,  it  is 

ordered  and  decreed  that  said  sum  of  S shall  be  and 

is  in  full  of  all  costs  and  expenses  of  said  suit,  also  of  all  ar- 
rears of  alimony  that  are  now  due  and  unpaid,  and  of  any  sum 
or  sums  ordered  and  decreed  to  be  paid  for  the  support  and 

[395] 


FORMS. 


maintenance  of  the  minor  child  of  said  parties,  that  are  now 
due  and  unpaid,  according  to  the  former  order  of  the  Court, 
and  for  all  future  ahmony  and  also  for  all  past  and  future 
expenses  of  maintaining  said  minor  child  and  in  all  other 
respects  said  decree  is  affirmed. 

Atty.  for  Lihellant. 


Atty.  for  Libellee. 


No.  56. 

Order  to  Modify  Decree. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

Divorce  No.  948. 
M.  A.  A.,  Petitioner, 

V. 

W.  H.  A.,  Respondent. 

In  the  above-entitled  petition  it  is  ordered,  adjudged  and 
decreed  that  this  decree  heretofore  entered  on  the  eighth  day 

of  January,  1905,  in  the  libel  for  divorce  numbered  of 

,  between  the  said  petitioner  as  Libellant  and  the  said 

respondent  as  Libellee,  be,  and  the  same  hereby  is  modified 
as  set  forth  in  the  agreement  of  the  parties,  which  is  hereto 
annexed  and  made  a  part  of  this  decree,  and  in  all  other  re- 
spects said  decree  of  Jaunary  8,  1905,  is  affirmed. 

By  the  Court. 

,  Assistant  Clerk. 

Dated  at  Boston  the day  of ,  A.  D.  . 


(This  form  is  taken  from  the  original  papers.) 
[  396  ] 


FORMS. 

No.  57. 

Agreement  to  Sustain  Decree  of  Probate  Court. 
(After  appeal  has  been  taken.) 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.;  Superior  Court. 

Divorce  No. . 

L.  B.  C,  Petitioner, 

V. 

F.  T.  C,  Respondent. 

DECREE. 
Braley,  J. 

This  cause  came  on  to  be  heard  and  upon  the  agreement  of 
the  parties  it  is  now  ordered,  adjudged  and  decreed  that  the 
appeal  of  the  respondent  F.  T.  C.  be,  and  the  same  hereby  is, 
sustamed,  that  the  petition  of  the  said  L.  B.  C.  be  and  the  same 
hereby  is  dismissed  and  remanded  to  the  Probate  Court. 

By  the  Court. 

,  Assistant  Clerk. 

(This  form  is  taken  from  the  original  papers.) 


No.  58. 

Dismissal  of  Appeal  from  the  Probate  Court. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

A.  L.  L.,  Petitioner. 

V. 

T.  J.  L.,  Respondent. 

In  the  above-entitled  petition  wherein  said  T.  J.  L.  of  Boston 
in  said  County  of  Suffolk  appealed  from  a  decree  of  the  Probate 

[397] 


FORMS. 

Court  and  for  said  County  of  Suffolk  dated  the  tenth  day  of 
January,  1901,  in  favor  of  his  wife,  A.  L.  L.,  Petitioner,  whereby 
the  Respondent  T.  J.  L.  was  ordered  to  pay  the  Petitioner 
for  the  support  of  herself,  ten  dollars  forthwith,  and  the 
further  sum  of  five  dollars  each  Thursday  thereafter. 

It  is  now  ordered  on  the  twenty-ninth  day  of  October,  1901, 
that  said  appeal  be  and  the  same  hereby  is  dismissed  and  the 
decree  of  the  Probate  Court  be  and  the  same  hereby  is  affirmed. 

(This  form  was  taken  from  the  original  papers.) 


No.  59. 

Affidavit  of  Physician  that  Witness  is  Unable  to  Attend  Court. 

KNOW  ALL  MEN  BY  THESE  PRESENTS. 
That  I,  ,  of  in  the  County  of 


and  Commonwealth  of  Massachusetts,  depose  and  say  that  I 
am  a  duly  registered  physician  and  surgeon,   practicing  in 

,  in  the  County  of  ,  and  with  an  office  at 

street,  that  I  have  been  and  at  present  am  the  regu- 
lar attending  physician  of ,  that  I  have  attended 

frequently  during  the  past  weeks,   that  on 


1904,  at  the Hospital  in ,  in  the  County  of 

,  a  surgical  operation  of  a  delicate  and  serious  nature 

was   performed  upon  that  at    the   time  said   operation 

was  performed,  I  was  present  and  assisted  in  performing  it, 

that  at  the  present  time  the  said is  a  patient  at  the 

Hospital  and  is  under  medical  treatment  and  care, 

and  I  still  attend  h —  and  attended  h —  on ,  that 

is  still  confined  in  bed  and  is  not  able  and  does  not  sit 

up  in  bed. 

I  further  depose  and  say  that  in  my  opinion  it  will  not  be 

safe  or  proper  for  h—  to  leave  the  hospital  for  at  least 

[398] 


FORMS. 

from  the  present  time,  that is  still  in  an  extremely  nervous 

state,  and  for  recovery  should  be  kept  quiet,  free 

from  noise  and  excitement,  and  subject  to  no  mental  or  physi- 
cal strain. 

Boston, ,  1905. 

Then  personally  appeared  the  above-named  and 

made  oath  that  the  foregoing  affidavit  subscribed  by  him  is 
true. 

Before  me . 

Notary  Public. 


No.  60. 

Petition  for  "Writ  of  Protection. 

"Your  petitioner  says  that  he  is  not  a  resident  of  the  Com- 
monwealth of  Massachusetts;  that  he  is  here  temporarily  for 

the  purpose  of  attending  the  trial  of  the  divorce  case  of 

V.  ,  No.  ,  in  which  he  is  the  Libellant,  now  on 

the  short  fist  in  said  Court,  and  undisposed  of;  that  said  suit 
has  not  been  commenced  collusively,  but  was  commenced 
and  is  conducted  in  good  faith  in  every  respect;  that  he  ap- 
prehends his  arrest  for  debt,  and  prays  that  this  court  may 
issue  a  writ  of  protection  in  his  behalf." 

Subscribed  and  sworn  to  before  me  the  day  of 

,  A.  D.  . 


Justice  of  the  Peace. 


[399] 


FORMS. 

No.  61. 

Petition  for  Custody  of  Minor  Children. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.;  Superior  Court. 

To  the  Honorable  the   Justices  of  the  Superior  Court  to  be 
holden  at  Boston,  within  and  for  the  County  of  Suffolk: 

Respectfully  represents  A.  B.  of in  the  County  of 

,  that  on  the day  of ,  A.  D. , 

a  decree  of  divorce  nisi,  was  granted  against  him  in  favor  of 

C.  B,,  now  of in  the  County  of ,  with  custody 

of  the  minor  children,  E.  B.  and  G.  B.  to  said  C.  B.    That  said 
decree  nisi  has  since  become  absolute. 

That  since  the  granting  of  said  decree  nisi  the  said  C.  B. 
has  contracted  gross  and  confirmed  habits  of  intoxication, 
caused  by  the  voluntary  and  excessive  use  of  intoxicating 
liquor,  and  has  become  an  unfit  person  to  have  the  custody 
of  said  minor' children. 

That  your  petitioner  is  able  to  take  said  children,  and  provide 
a  good  home  for  them. 

Wherefore  your  petitioner  prays  that  he  be  given  the  care 
and  custody  of  said  minor  children. 

(Same.) 
(Same  formal  heading  as  above.) 

Respectfully  represents  A.  D.  of in  the  County  of 

-,  that  on  the day  of ,  A.  D. 


she  obtained  a  decree  of  divorce,  nisi,  for  cause  of  cruel  and 

abusive  treatment,  from  C.  D.  of  in  the  State  of 

.    That  at  the  time  when  said  decree  was  granted 

your  petitioner  did  not  ask  for  the  custody  of  the  minor  chil- 
dren, H.  D.  and  W.  D.,  as  they  were  already  in  her  custody, 
and  said  C.  D.  was  then  of  parts  unknown.  That  your  peti- 
tioner now  has  reason  to  beUeve  that  said  C.  D.  is  planning 
[400] 


FORMS. 


to  seize  said  children  and  remove  them  from  the  Common- 
wealth by  force. 

Wherefore  she  prays  that  the  care  and  custody  of  said 
minor  children  may  be  decreed  to  her. 


Petitioner. 


No.  63. 


Petition  to  Modify  Decree  for  Alimony. 
(Husband's  Petition  to  Reduce.) 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.;  Superior  Court. 

To  the  Honorable  the  Justices  of  the  Superior  Court  to  be 
holden  at  Boston,  within  and  for  the  County  of  Suffolk: 

Respectfully  represents  A.  B.  of  Boston  in  the  County  of 
Suffolk  that  upon  granting  a  decree  of  divorce,  nisi,  granted 
in  favor  of  C.  B.  of  said  Boston,  against  your  petitioner  on  the 

day  of ,  A.  D.  ,  which  decree  nisi  has 

since  become  absolute,  this  Court  ordered  your  petitioner  to 
pay  to  said  C.  B.  the  sum  of  ten  dollars  per  week,  as  ahmony. 

That  at  the  time  said  decree  was  made  your  petitioner  was 
receiving  an  income  of  twenty-five  dollars  per  week,  and  said 
C.  B.  was  without  visible  means  of  support;  but  at  the  present 
time  your  petitioner  is  out  of  employment,  and  has  no  prop- 
erty and  no  income  except  a  pension  of  twenty  dollars  per 
month,  and  is  wholly  unable  to  pay  said  ahmony,  and  said 
C.  B.  has  recently  come  into  an  income  of  about  three  hundred 
dollars  per  year  by  inheritance. 

Wherefore  your  petitioner  prays  that  said  decree  as  to 
ahmony  may  be  modified  by  reducing  said  ahmony  materially, 
or  to  a  nominal  sum,  or  by  discontinuing  the  same  altogether. 

Petitioner. 
26  [  401  ] 


FORMS, 

No.  63. 

Wife's  Petition  for  Alimony. 

(Omitting  formal  parts.) 

Respectfully  represents  C.  D.  of  Boston  in  the  County  of 

Suffolk,  that  on  the  day  of  ,  A.  D.  , 

she  was  granted  a  decree  of  divorce,  nisi,  against  A.  B.  of  said 
Boston,  with  custody  of  the  two  minor  children,  E.  D.  and  F.  D. 
That  at  the  time  of  the  hearing  on  said  Ubel,  no  payment  of 
money  was  asked  for  by  your  hbellant,  either  as  alimony  or 
for  the  support  of  children.  At  that  time  said  A.  B.  was  out 
of  the  Commonwealth,  and  had  little  or  no  property  of  any 
value,  so  far  as  your  petitioner  knew,  and  your  petitioner  was 
then  in  fairly  comfortable  circumstances,  she  and  her  chil- 
dren being  supported  by  her  father  and  brothers.  At  the 
present  time  your  petitioner  is  dependent  upon  her  own  exer- 
tion for  her  support,  and  said  children  are  now  of  the  ages  of 
14  and  12  years,  and  the  expense  of  their  maintenance  and 
education  has  increased.  The  respondent  has  now  secured 
employment,  and  is  residmg  in  Boston,  Massachusetts,  and 
your  petitioner  is  informed  and  beheves  that  he  is  in  receipt 
of  an  income  of  not  less  than  three  thousand  dollars  per  year. 

Wherefore  she  prays  that  the  respondent  be  ordered  to 
pay  her  a  suitable  allowance  as  alimony  and  for  the  support 
of  said  children. 


Petitioner. 


[402] 


FORMS. 

No.  64. 

Petition  to  Vacate  Decree. 

COMMONWEALTH  OF  MASSACHUSETTS. 

Suffolk,  ss.:  Superior  Court. 

No. Divorce. 


PETITION  TO  VACATE  DECREE. 

And  now  comes  ,  your  petitioner,  and  prays  that 

the  decree  nisi  entered  in  the  above-entitled  case  upon  the 

day  of  ,  A.  D.  1905,  be  vacated  and  that 

the  hearing  upon  the  above-entitled  case  be  reopened  for  the 
following  reasons : 

First.  That  the  finding  in  said  cause  was  based  upon  evi- 
dence that  was  untrue  and  false  in  every  particular. 

Second.  That  the  above-entitled  cause  was  contested  by 
her  and  that  in  the  course  of  said  contest  she  had  employed 

as  her  attorney.    That  she  is  informed  and  believes 

that  was  acting  as  her  attorney  on  the  day  of  the 

trial  of  said  cause.  That  his  appearance  had  not  been  with- 
drawn and  has  not  since  been  withdrawn.  That  on  the  day 
of  the  trial  her  attorney,  either  by  himself  or  through  some 
agent,  was  present  during  the  day  and  that  at  the  time  this 
case  w^as  tried,  in  the  \dcinity  of  five  o'clock  in  the  afternoon 
of  the  day  of  the  trial,  the  cause  came  on  without  the  knowl- 
edge of  ,  her  attorney,  and  without  her  knowledge 

and  the  first  knowledge  she  had  was  the  information  that  the 
case  had  been  tried  and  decided  against  her  upon  the  grounds 
of  gross  and  confirmed  habits  of  intoxication.  That  when 
said  information  had  been  conveyed  to  her  she  w^as  ill  and 
unable  to  intelhgently  decide  what  course  she  ought  to  pursue. 

Third.  Your  petitioner  says  that  until  recently  she  had  not 
been  given  any  information  as  to  the  nature  of  the  testimony 

[403] 


FORMS. 

against  her,  or  as  to  the  parties  who  gave  such  testimony. 
That  she  has  been  informed  who  the  witnesses  were  and  says 
that  they  were  persons  who  were  procured  by  the  Ubellant  to 
testify  against  her.  That  their  statements  were  false,  that  in 
one  case  at  least,  the  case  of  one  ,  who  she  is  in- 
formed and  beUeves  testified,  the  witness  had  no  knowledge 
or  acquaintance  with  your  petitioner  upon  which  she  could 
base  testimony  either  for  or  against  her.  That  one  other  wit- 
ness,   ,   testified  upon  statements  furnished  to  him 

by  the  libellant  for  him  to  testify  to.  That  as  to  one  other 
witness,  who  she  is  informed  and  believes  testified  at  the  said 
trial,  she  is  entirely  unacquainted  with  and  unable  to  say 
other  than  that  if  any  material  testimony  was  given  by  the 
said  witness,  it  was  testimony  that  was  false  and  without 
foundation. 

Fourth.  That  upon  information  and  belief  she  has  learned 
that  statements  were  made  to  the  Justice  presiding  at  the 
trial,  that  her  case  had  been  uncontested,  and  that  by  reason 
of  that  statement  the  trial  proceeded.  She  has  been  informed 
and  believes  that  said  statement  was  made  either  by  the  Ubel- 
lant or  by  counsel  of  record  representing  the  libellant.  That 
said  statement  is  untrue  and  that  neither  the  counsel  nor  the 
libellant  had  any  right  or  authority  either  through  her,  or 
counsel  of  record  representing  her,  to  make  any  such  state- 
ment. 

Fifth.  That  the  charge  upon  which  the  finding  was  made 
as  well  as  the  evidence  upon  which  the  said  charge  was  sus- 
tained, is  false,  and  that  she  asks  an  opportunity  to  present 
to  the  court,  evidence  on  such  charge  and  asks  that  the  decree 
nisi  now  pending  upon  the  records  of  this  court  may  be  stricken 
off  and  that  she  may  be  allowed  to  present  to  court  her  evi- 
dence and  have  an  opportunity  to  be  heard  by  counsel  upon 
the  issue  presented  in  said  hbel. 


Petititoner. 
[404] 


FORMS. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Boston,  1905. 

Subscribed  and  sworn  to  before  me  this  day  of 

,  A.  D.  1905. 

Justice  of  the  Peace. 
(This  form  is  taken  from  the  original  papers.) 


No.  65. 

Objection  to  Decree  Absolute. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Superior  Court. 

No. Divorce. 

,  Libellant, 

V. 

,  Lihellee. 


OBJECTION  TO  DECREE  ABSOLUTE. 

And  now  conies  the  hbellee,  and  deposes,  and  says  that  on 
or  about  the  time  notice  of  the  said  hbel  was  served  upon  hun, 

he  consulted  with  and  engaged  one  ,  an  attorney, 

of  this  court,  to  appear  and  answer  in  his  behalf  and  to  con- 
duct his  defence,  yet  the  said  utterly  failed  and 

neglected  so  to  appear  and  answer,  and  your  affiant  had  no 
notice  or  knowledge  of  the  time  of  the  hearing  of  said  hbel, 
but  was  later  informed  that  a  decree  nisi  had  been  granted 
to  the  Ubehant;  and  your  deponent  further  says  that  he 
beheves  he  has  a  good  defence  to  the  said  hbel,  and  has  at  all 
times  intended  m  good  faith,  and  stih  mtends  to  defend  the 
said  hbel. 

Wherefore,  he  prays  that  the  decree  nisi  which  was  granted 

[405] 


FORMS. 

to  the  said  libellant  be  vacated  so  that  the  said  cause  may  be 
heard  upon  its  merits. 

Petitioner. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.:  Boston,  Dec.  — ,  A.  D.  1905. 

Then  personally  appeared  the  above-named  and 

deposed  and  said  that  the  above  statement  subscribed  by  him 
is  true,  before  me. 

Notary  Public. 
(This  form  is  taken  from  the  original  papers.) 


No.  66. 

Decree  dismissing  Libel  for  Adultery. 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss..-  Superior  Court. 

No. Divorce. 

DECREE. 
In  the  above-entitled  hbel  for  divorce,  upon  hearing,  it  is 
ordered  and  decreed  that  the  Hbel  be,  and  the  same  hereby  is 
dismissed,  for  the  reason  that  each  party  has  been  guilty  of 
adultery  as  charged  by  the  other. 

By  the  Court. 
George  P.  Drury, 
Assistant  Clerk. 
(This  form  is  taken  from  the  original  papers.) 


[406] 


FORMS. 

No.  67. 

Answer  (General  Denial). 

COMMONWEALTH  OF  MASSACHUSETTS. 
Suffolk,  ss.;  Superior  Court. 

No. Divorce. 

A.  B. 

V. 

CD. 

Now  comes  the  libellee  and,  admitting  the  allegation  of 
marriage,  denies  each  and  every  allegation  in  the  hbel  con- 
tained. 


Libellee. 

(Another  Form). 
"The  libellee  denies  that  (he  or  she)  has  ever  committed 
any  of  the  offences  which  are  alleged  in  said  libel  as  causes  for 
divorce  against  (him  or  her)." 


[407] 


STATISTICS  OF  MARRIAGE  AND  DIVORCE. 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 


STATISTICS  OF  MARRIAGE  AND  DIVORCE. 

The  following  tables  of  statistics  of  marriage  and  divorce 
are  not  complete,  and  have  been  gathered  with  great  diffi- 
culty. Many  of  the  States  have  no  records  of  marriages  and 
divorces,  except  that  the  marriages  are  recorded  in  the  towns 
and  cities  where  solemnized,  and  the  divorces  are  with  the 
records  of  the  courts.  To  compile  these  statistics  the  records 
of  every  town  and  city,  as  well  as  the  records  of  the  courts, 
would  have  to  be  examined  for  each  year,  which  would  take 
a  great  amount  of  tune  and  a  large  expenditure  of  money. 
In  1889  the  Federal  government  published  statistics  on  mar- 
riage and  divorce  for  the  twenty  years  from  1867  to  1886. 
These  statistics  were  compiled  by  Hon.  Carroll  D.  Wright, 
and  most  of  the  statistics  here  given  prior  to  1887  are  taken 
from  his  report.  Since  1887  statistics  have  been  gathered 
by  the  kind  assistance  of  those  in  charge  of  public  documents 
in  the  various  States.  In  the  twenty  years  covered  by  Car- 
roll D.  Wright's  report  (1867  to  1886),  328,716  divorces  were 
granted.  In  1867  there  were  9,937  decrees  entered;  in  1886 
there  were  25,535  decrees,  an  increase  in  twenty  years  of 
157  per  cent.  The  population  during  this  time  increased  but 
60  per  cent.  Of  this  number  of  divorces,  216,176  were  granted 
to  the  wife  and  112,540  were  granted  to  the  husband.  It  is 
impossible  to  give  the  number  of  marriages  celebrated  each 
year,  owing  to  imperfect  returns,  and  in  some  States  no  records 
have  been  kept.  As  far  as  possible  the  author  has  given 
the  number  of  marriages  celebrated  and  divorces  granted  in 
each  state,  giving  ratio  of  divorces  to  marriages, 

[411] 


1867, 

1868, 

1869, 

1870, 

1871, 

1872, 

1873, 

1874, 

1875, 

1876, 

1877, 

1878, 

1879, 

1880, 

1881, 

1882, 

1883, 

1884, 

1885, 

1886, 

1887, 

1888, 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

1895, 

1896, 

1897, 

1898, 

1899, 

1900, 

1901, 

1902, 

1903, 

1904, 

1905, 

1906, 


STATISTICS  OF  MARRIAGE  AND  DIVORCE. 

ALABAMA. 


Marriages. 


Ratio  of  Divorcea 
to  MairiageB. 


78 
91 
90 
114 
106 
117 
143 
163 
146 
183 
194 
268 
327 
300 
413 
395 
486 
413 
515 
662 


ARIZONA. 


1867,   

1868,   

1 

1869 

0 

1870,   

1 

1871,   

2 

1872,   

2 

[412] 


STATISTICS   OF   MARRIAGE   AND   DIVORCE, 
ARIZONA — continued. 


Marriages. 


Ratio  of  Divorces 
to  Marriages. 


3 

2 

1 

9 

8 

5 

28 

23 

17 

22 

34 

27 

22 

30 


ARKANSAS. 


121 
83 
113 
113 
132 
129 
143 
144 
187 
243 
256 
334 


[413] 


1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


STATISTICS   OF  MARRIAGE   AND   DIVORCE. 
ARKANSAS— conJwwed. 


Marriagea. 


Ratio  of  DivorceB 
to  Marriages. 


383 
464 
510 
422 
497 
539 
582 
646 


CALIFORNIA. 


1867, 

1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 


200 
206 
297 
298 
287 
368 
489 
535 
573 
588 
630 
594 
646 
683 
829 
853 
986 
1,049 


[414] 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 
CALIFORNIA— continued. 


Ratio  of  Divorces 
to  MaTiiages. 


974 
1.010 


COLORADO. 


4 
9 

9 

30 

28 

42 

59 

63 

83 

91 

102 

138 

153 

250 

362 

440 

510 

467 

387 

451 


[415] 


1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906. 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 
COLORADO— continued. 


Marriages. 


Ratio  of  Divorces 
to  Marriages. 


CONNECTICUT. 


1867, 

4,779 

500 

1  to  9.56 

1868, 

4,734 

493 

1  to  9.60 

1869, 

4,754 

497 

1  to  9.56 

1870, 

4,971 

408 

1  to  12.18 

1871, 

4,4S2 

412 

1  to  10.88 

1872, 

5,023 

464 

1  to  10.82 

1873, 

4,841 

457 

1  to  10.60 

1874, 

• 

4,694 

492 

1  to  9.54 

1875, 

4,387 

467 

1  to  9.40 

1876, 

4,320 

396 

1  to  10.91 

1877, 

4,319 

457 

1  to  9.45 

1878, 

4,315 

401 

1  to  10.76 

1879, 

4,373 

316 

1  to  13.83 

1880, 

4,745 

332 

1  to  14.29 

1881, 

4,850 

404 

1  to  12 

1882, 

5,329 

392 

1  to  13.59 

1883, 

5,441 

451 

1  to  12.06 

1884, 

5,394 

344 

1  to  15.68 

1885, 

5,091 

398 

1  to  12.97 

1886, 

5,497 

420 

1  to  13.09 

1887, 

1888, 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

5,830 

367 

1  to  15.88 

1895, 

6,623 

417 

1  to  15.88 

1896, 

6,714 

449 

1  to  14.95 

[416] 


1867, 

1868, 

1869, 

1870 

1871, 

1872, 

1873, 

1874, 

1875, 

1876, 

1877, 

1878, 

1879, 

1880, 

1881, 

1882, 

1883, 

1884, 

1885, 

1886, 

1887, 

1888, 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

1895, 

1896, 

1897, 

1898, 

1899, 

1900, 

1901, 

1902, 


STATISTICS  OF  MARRIAGE  AND  DIVORCE. 
COHU'ECTIC'UT— continued. 


DELAWARE. 


490 
567 
718 
678 
793 
971 


25 
1 

21 
1 

21 

23 
8 
4 
6 

16 
6 

36 
5 

20 
6 

27 

11 

41 
9 


YEAR. 

Marriages. 

Divorces. 

Ratio  of  Divorces 
to  ManiageB. 

1897, 

1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 

6,461 
6,565 
6,843 
6,991 
7,112 
7,G60 
8,078 

403 
429 
431 
452 
511 
462 
533 

1  to  16.03 
1  to  15.30 
1  to  15.87 
1  to  15.46 
1  to  13.91 
1  to  16.58 
1  to  15.15 

1  to 
1  to 
1  to 
1  to 
1  to 


24.50 
94.75 
26.63 
61.63 
19.. 33 


1  to  107.80 


27 


[417] 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 
Ji^L  AW  AR'E— continued. 


TEAR. 

MarriageB. 

Divorces. 

Ratio  of  Divorceg 
to  Marriages. 

1903,         

1904,       

1905,       

1906,       

DELAWARE,  Legislative  Divorces  in 


1871, 
1873, 
1877, 
1879, 
1881, 
1883, 
1885, 
1887, 
1889, 
1891, 
1893, 
1895, 
1897, 


19 
23 
14 
34 
13 
21 
31 
42 
63 
47 
53 
48 
100 


DISTRICT  OF  COLUMBIA. 


1867 

1,912 

28 

1  to  68.28 

1868 

1,717 

23 

1  to  74.65 

1869 

1,162 

24 

1  to  48.41 

1870 

1,590 

39 

1  to  40.77 

1871 

1,328 

47 

1  to  28.25 

1872 

1,645 

67 

1  to  24.55 

1873 

1,737 

64 

1  to  27.14 

1874 

1,653 

73 

1  to  22.64 

1875 

1,669 

56 

1  to  29.80 

1876 

1,590 

58 

1  to  27.41 

1877 

1,541 

74 

1  to  20.82 

1878 

1,638 

49 

1  to  33.42 

1879 

1,758 

40 

1  to  43.95 

1880 

1,623 

66 

1  to  24.59 

1881 

1,618 

65 

1  to  24.89 

1882 

1,655 

55 

1  to  30 

1883, 

1,881 

66 

1  to  28.50 

1884 

2,130 

81 

1  to  26.30 

1885, 

2,053 

55 

1  to  37.. 33 

1886, 

2,170 

75 

1  to  28.93 

1887, 

1888, 

1889, 

1890, 

[418] 


STATISTICS   OF   MARRIAGE   AND    DIVORCE. 
DISTRICT  OF  COLVULBIA— continued. 


Ratio  of  Divorces 
to  Marriages. 


FLORIDA. 


32 

28 

52 

57 

29 

51 

58 

61 

85 

85 

89 

104 

130 

149 

153 

174 

200 

158 

201 

232 


[  419  ] 


1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


STATISTICS    OF   MARRIAGE   AND   DIVORCE. 
FLORIDA — continued. 


Marriages. 


Ratio  of  Divorces 
to  Marriagee. 


GEORGIA. 


1867, 

1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 


127 

82 
112 
118 
148 
143 
175 
182 
196 
197 
211 
123 
223 
253 
215 
284 
258 
292 
295 
365 


[420] 


STATISTICS  OF  MAERIAGE  AND  DIVORCE. 
Or^OHQlA— continued. 


YEAR. 

Marriages. 

Divorces. 

Ratio  of  Divorces 
to  MarriageB. 

1900,       

1901,       

1902, 

1903,       

1904 

1905,       

1906,       

IDAHO. 


12 

7 

12 

9 

14 

7 

8 

3 

10 

9 

9 

8 

16 

23 

14 

36 

39 

36 

52 

53 


421 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 

ILLINOIS. 


Ratio  of  Divorces 

YEAR. 

Marriages. 

Divorces. 

to  Marriages. 

1867,          

21,440 

1,071 

1  to  20 

1868, 

20,061 

1,125 

1  to  17.83 

1869, 

20,104 

1,179 

1  to  17.05 

1870, 

19,534 

1,178 

1  to  16.58 

1871, 

20,569 

1,250 

1  to  16.45 

1872, 

26,128 

1,745 

1  to  14.97 

1873, 

26,802 

1,787 

1  to  15 

1874, 

25,411 

1,678 

1  to  15.14 

1875, 

25,340 

1,647 

1  to  15.37 

1876, 

24,465 

1,659 

1  to  14.74 

1877, 

24,509 

1,647 

1  to  14.88 

1878, 

25,820 

1,748 

1  to  14.77 

1879, 

26,726 

1,842 

1  to  14.50 

1880, 

28,402 

2,139 

1  to  13.27 

1881, 

30,763 

2,326 

1  to  13.22 

1882, 

33,173 

2,375 

1  to  13.96 

1883, 

33,794 

2,455 

1  to  13.76 

1884, 

32,770 

2,342 

1  to  14 

1885, 

32,480 

2,273 

1  to  14.28 

1886, 

34,076 

2,606 

1  to  13.07 

1887, 

1888, 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

1895, 

1896, 

1897, 

1898, 

1899, 

1900, 
1  oni 

lyui, 
1902, 

1903, 

1904,       , 

1905, 

1906, 

n 

INDIANA. 


1867,       

1,096 

1868,       

1,126 

1869,       

1,210 

1870,       

1,170 

1871,       

1,139 

[422] 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 
INDIANA — continued. 


Ratio  of  Divorces 

YEAR. 

Marriages. 

Divorces. 

to  Marriages. 

1872,          

1,157 

1873,       . 

864 

1874,       . 

1,002 

1875,       . 

1,052 

1876,       . 

1,014 

1877,       . 

1,151 

1878,       . 

1,183 

1879,       . 

1,271 

1880,       . 

1,423 

1881,       . 

1,495 

1882,       . 

1,540 

1883,       . 

1,607 

1884, 

1,534 

1885,       . 

1,504 

1886, 

1,655 

1887, 

1888,       . 

1889, 

1890,       . 

1891, 

1892, 

1893, 

1894.       . 

1895, 

1896, 

1897, 

23,990 

3,080 

1  to  7.78 

1898, 

25,043 

2,896 

1  to  8.64 

1899, 

25,232 

4,031 

1  to  6.26 

1900, 

27,671 

4,699 

1  to  5.88 

1901, 

1902, 

1903, 

1904, 

1905, 

1906, 

IOWA. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 


504 
553 
584 
570 
627 
617 
709 
662 
675 
846 


[423] 


1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


STATISTICS   OF  MARRIAGE   AND   DIVORCE. 
IOWA — continued. 


Marriagea. 


854 
842 
854 
1,001 
1,063 
1,150 
1,043 
1,164 
1,119 
1,127 


Ratio  of  Divorces 
to  Marriagea. 


KANSAS. 


1867, 

922 

76 

1  to  12.13 

1868, 

1,150 

113 

1  to  10.17 

1869, 

1,540 

122 

1  to  12.62 

1S70, 

2,065 

158 

1  to  13.07 

1871, 

2,517 

256 

1  to   9.83 

1872, 

2,950 

280 

1  to  10.53 

1873, 

3,284 

236 

1  to  13.91 

1874, 

3,600 

296 

1  to  12.16 

1875, 

3,391 

220 

1  to  15.41 

1876, 

4,099 

261 

1  to  15.67 

1877, 

4,194 

261 

1  to  16.07 

1878, 

4,981 

357 

1  to  13.95 

1879, 

5,897 

387 

1  to  15.23 

1880, 

6,572 

442 

1  to  14.86 

1881, 

6,577 

444 

1  to  14.81 

[424] 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 
KANSAS — continued. 


YEAR. 

Marriages. 

Divorces. 

Ratio  of  Divorces 
to  Marriages. 

1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 

6,703 
7,477 
8,609 
9,365 
10,481 

558 
643 
574 
690 
817 

1  to  12 
1  to  11.62 
1  to  15 
1  to  13.56 
1  to  12.82 

KENTUCKY. 


292 
320 
332 
368 
414 
404 
460 
436 
432 
510 
550 
531 
537 
567 
660 
615 
640 
668 
7.55 
757 


[425] 


1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


STATISTICS  OF   MARRIAGE   AND   DIVORCE. 
'K.'EST'U  CKY— continued. 


Marriages. 


Ratio  of  Divorces 
to  Mairiages. 


LOUISIANA. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 


33 

34 

41 

30 

35 

32 

49 

70 

90 

78 

68 

70 

87 

109 

112 

94 

157 

143 

168 

197 


[426] 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 
LOUISIANA — continued. 


Ratio  of  Divorcea 
to  Marriages. 


MAINE. 


1867, 

408 

1868, 

416 

1869, 

365 

1870, 

357 

1871, 

402 

1872, 

387 

1873, 

365 

1874, 

466 

1875, 

447 

1876, 

436 

1877, 

495 

1878, 

489 

1879, 

510 

1880, 

609 

1881, 

674 

1882, 

529 

1883, 

373 

1884, 

244 

1885, 

332 

1886, 

1  CQ7 

374 

loo/, 
1888, 

1889, 
1890, 

1891, 
1892, 
1893, 
1894, 
1895, 
1896, 

5,726 
5,795 
5,591 
5,729 
5,579 

552 
627 
674 
681 
668 

1  to  10.37 
1  to  9.24 
1  to  8.29 
1  to  8.41 
1  to  8.35 

[427] 


STATISTICS  OF   MARRIAGE  AND  DIVORCE. 
MAINE — continued. 


Ratio  of  Divorces 

YEARS. 

Marriages. 

Divorces. 

to  Marriages. 

1897,          

5,331 

722 

1  to    7.38 

1898, 

5,144 

764 

1  to    6.73 

1899, 

5,329 

790 

1  to    6.74 

1900, 

5,482 

801 

1  to    6.84 

1901, 

5,735 

808 

1  to    7.09 

1902, 

5,905 

905 

1  to    6.52 

1903, 

6,200 

946 

1  to    6.55 

1904, 

1905, 

1906, 

MARYLAND. 


1867, 

6,169 

83 

1  to  74.27 

1868, 

7,636 

83 

1  to  92 

1869, 

6.635 

86 

1  to  77.15 

1870, 

6,326 

84 

1  to  75.30 

1871, 

6,100 

89 

1  to  68.54 

1872, 

6,381 

109 

1  to  58.54 

1873, 

6,667 

87 

1  to  76.63 

1874, 

6,555 

81 

1  to  80.92 

1875, 

6,293 

97 

1  to  64.87 

1876, 

5,991 

91 

1  to  65.83 

1877, 

6,117 

83 

1  to  73.70 

1878, 

6,241 

82 

1  to  76.11 

1879, 

6,370 

99 

1  to  64.34 

1880, 

6,900 

128 

1  to  53.90 

1881, 

6,837 

103 

1  to  66.37 

1882, 

7,363 

138 

1  to  53.35 

1883, 

7,253 

157 

1  to  46.20 

1884, 

7,714 

173 

1  to  44.59 

1885, 

7,347 

167 

1  to  44 

1886, 

8,436 

165 

1  to  51.12 

1887, 

1888, 

1889, 

1890, 

1891, 

1892,       . 

1893, 

1894, 

1895, 

1896, 

1897,       . 

1898,       . 

1S99, 

1900,       , 

1901,       . 

[428] 


STATISTICS   OF   MARRIAGE   AND    DIVORCE. 
MARYLAND — continued. 


YEAR. 

Marriages. 

„.         1  Ratio  of  Divorces 
Divorces.       ^  .. 

to  Marriages. 

1902,   

1903,   

1904,   

1905,   

1906, 

MASSACHUSETTS. 


1867, 

14,451 

318 

1  to  45.44 

1868, 

13,856 

369 

1  to  37.55 

1869, 

14,826 

359 

1  to  41. 29 

1870, 

14,721 

404 

1  to  36.43 

1871, 

15,746 

331 

1  to  47.57 

1872, 

16,142 

337 

1  to  47.90 

1873, 

16,4.37 

442 

1  tc  37.18 

1874, 

15, .564 

611 

1  to  25.47 

1875, 

13,666 

577 

1  to  23.68 

1876, 

12,749 

511 

1  to  24.95 

1877, 

12,798 

520 

1  to  24.61 

1878, 

12,893 

601 

1  to  21.45 

1879, 

13,802 

550 

1  to  25.09 

1880, 

15,538 

595 

1  to  26. 11 

1881, 

16,768 

387 

1  to  43.23 

1882, 

17,684 

532 

1  to  33.24 

1883, 

18,194 

655 

1  to  27 .  77 

1884, 

17,333 

614 

1  to  28 .  32 

1885, 

17,0.52 

646 

1  to  26.40 

1886, 

18,018 

601 

1  to  30 

1887, 

19,533 

796 

1  to  24 .  53 

1888, 

19,739 

624 

1  to  31. 63 

1889, 

20,397 

756 

1  to  26.98 

1890, 

20,838 

654 

1  to  31. 86 

1891, 

21,675 

798 

1  to  27.16 

1892.   . 

22  507 

790 

1  to  28.49 

1893, 

22,814 

1,045 

1  to  21.83 

1894, 

20,619 

1,107 

1  to  18.62 

1895, 

23,102 

954 

1  to  24.21 

1896, 

23,651 

1,230 

1  to  19.22 

1897, 

23,038 

1,123 

1  to  20.51 

1898, 

22,142 

1,182 

1  to  18.73 

1899, 

23,523 

1,163 

1  to  20.22 

1900, 

24,342 

1,258 

1  to  19.35 

1901, 

24,891 

1,376 

1  to  18.09 

1902, 
1903, 

25,685 

1,480 

1  to  17.35 

1904, 

1905, 

1906. 

[429] 


STATISTICS   OF   MARRIAGE   AND    DIVORCE. 

MICHIGAN. 


i 

Ratio  of  Divorecfl 

YEAR 

Marriages. 

Divorces. 

to  Marriages. 

1867,       .... 

5,740 

449 

1  to  12.70 

1868, 

5,547 

509 

1  to  10.90 

1869, 

8,534 

493 

1  to  17.31 

1870,       . 

9,235 

554 

1  to  16.67 

1871, 

10,196 

630 

1  to  16.18 

1872, 

9,897  . 

620 

1  to  15.96 

1873, 

10,622 

705 

1  to  15.06 

1874, 

11,041 

794 

1  to  13.90 

1875,       . 

11,055 

864 

1  to  12.79 

1876, 

10,859 

800 

1  to  13.57 

1877, 

11,009 

927 

1  to  11.86 

1878, 

12,221 

993 

1  to  12.30 

1879, 

13,231 

1,110 

1  to  11.96 

1880, 

14,149 

1,149 

1  to  12.31 

1881,       . 

14,817 

1,313 

1  to  11.28 

1882,       . 

16,178 

1,335 

1  to  12.11 

1883,       . 

16,420 

1,383 

1  to  11.87 

1884,       . 

15,002 

1,239 

1  to  12.10 

1885, 

15,016 

1  227 

1  to  12.23 

1886,       . 

15,314 

1,339 

1  to  11.43 

1887, 

1888, 

1889,       . 

1890, 

1891, 

1892, 

1893, 

1894, 

1895, 

1896, 

1897, 

1,656 

1898, 

1,901 

1899, 

2,328 

1900, 

2,435 

1901, 

24,079 

2,448 

1  to  9.83 

1902, 

25,653 

2,858 

1  to  8.97 

1903, 

25,585 

2,855 

1  to  8.96 

1904, 

1905, 

1906, 

1867, 
1868, 
1869, 
1870, 
1871, 


MINNESOTA. 


2,809 

52 

1  to  54 

3,002 

73 

1  to  41. 20 

3,157 

84 

1  to  37.58 

3,466 

83 

1  to  41.76 

3,9.^6 

111 

1  to  35.64 

[430  ] 


STATISTICS    OF   MARRIAGE   AND   DIVORCE. 
TSIN'S'ESOT  A—continued. 


Ratio  of  Divorces 

YEARr 

Marriages. 

Divorces. 

to  Marriages. 

1872,       

4,141 

108 

1  to  38.34 

1873,       . 

4,655 

137 

1  to  34 

1874,       . 

4,792 

131 

1  to  36.58 

1875,       . 

4,874 

135 

1  to  36.10 

1876,       . 

4,802 

148 

1  to  32.44 

1877,       . 

4,652 

140 

1  to  33.22 

1878, 

5,079 

151 

1  to  33.63 

1879, 

5,506 

176 

1  to  31.27 

1880,       . 

4,975 

228 

1  to  21. 82 

1881, 

6,443 

223 

1  to  28.88 

1882, 

8,441 

277 

1  to  30.47 

1883, 

9,029 

301 

1  to  30 

1884, 

9,111 

328 

1  to  27.77 

1885, 

9,479 

358 

1  to  26.47 

1886, 

9,131 

379 

1  to  24.09 

1887, 

1888,       . 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

1895, 

1896, 

1897, 

1898, 

1899, 

1900, 

1901, 

1902, 

1903, 

1904, 

1905, 

1906, 

MISSISSIPPI. 


49 

59 

75 

85 

105 

170 

169 

176 

171 

172 


[  431  ] 


STATISTICS   OF    MARRIAGE   AND   DIVORCE. 
MISSISSIPPI— con^ini/erf. 


Marria^eB. 


Ratio  of  Divorces 
to  Marriages. 


1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


712 
189 
295 
429 
421 
393 
449 
475 
482 
505 


MISSOURI. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 


366 
387 
426 
491 
615 
584 
621 
664 
668 
683 
728 
737 
727 
930 
951 


[432] 


STATISTICS   OF  MARRIAGE  AND   DIVORCE. 
ULISSOVRI— continued. 


Marriages. 


Ratio  of  Divorces 

to  Marriages. 


1,029 
1,107 
1,158 
1,193 
1,217 


MONTANA. 


17 
11 
14 
14 
19 
18 
20 
17 
9 
15 
15 
38 
27 
38 
55 
86 
70 
97 
116 
130 


28 


[  433  ] 


STATISTICS   OF   MARRIAGE    AND   DIVORCE. 
MO'STAH  A— continued. 


Ratio  of  Divorces 

YEAR. 

Marriages. 

Divorces. 

to  Marriages. 

1887 

1888, 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

1,598 

228 

1  to  7 

1895, 

1,694 

263 

1  to  6.44 

1896, 

1,686 

245 

1  to  6.88 

1897, 

1,730 

294 

1  to  5.88 

1898, 

1,984 

291 

1  to  6.80 

1899, 

2,073 

336 

1  to  6.17 

1900, 

2,194 

355 

1  to  6.18 

1901, 

2,305 

446 

1  to5.16 

1902, 

1903, 

1904, 

1905, 

1906, 

NEBRASKA. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 


10 

23 

39 

30 

49 

37 

80 

87 

81 

106 

115 

130 

184 

198 

191 

271 

315 

314 

338 

436 


[434] 


1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


STATISTICS  OF    MARRIAGE   AND   DIVORCE. 
H'EB'RASKA— continued. 


Marriages. 


Ratio  of  Divorces 
to  Marriages. 


NEVADA. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 


37 
62 
40 

28 
40 
39 
72 
72 
65 
72 
80 
84 
78 
64 
61 
44 
51 
57 
38 
44 


[435] 


STATISTICS   OF  MARRIAGE    AND    DIVORCE. 
NEVADA — continued. 


YEAR. 

Marriages. 

Divorces. 

Ratio  of  Divorces 
to  Marriages. 

1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 

NEW  HAMPSHIRE. 


1867, 

136 

1868, 

143 

1869, 

186 

1870, 

149 

1871, 

149 

1872, 

197 

1873, 

212 

1874, 

281 

1875, 

232 

1876, 

266 

1877, 

237 

1878, 

257 

1879, 

265 

1880, 

2,670 

339 

1  to  7.87 

1881, 

2,S30 

307 

1  to  9.21 

1882, 

3,433 

314 

1  to  10.93 

1883, 

3,495 

273 

1  to  12.80 

1884, 

3,292 

315 

1  to  10.45 

1885, 

3,180 

291 

1  to  10.93 

1886, 

3,324 

382 

1  to  8.70 

1887, 

3,495 

325 

1  to  10.75 

1888, 

3,379 

359 

1  to  9.41 

1889, 

3,621 

368 

1  to  9.84 

1890, 

3,621 

382 

1  to  9.48 

1891, 

3,904 

412 

1  to  9.47 

1892, 

4,074 

347 

1  to  11.74 

1893,   . 

4,090 

398 

1  to  10.27 

1894,   . 

3,881 

398 

1  to  9.75 

1895,   . 

4,015 

407 

1  to  9  86 

1896,   . 

4,032 

406 

1  to  9.93 

1897,   . 

3,776 

429 

1  to  8.80 

1898,   . 

3,793 

445 

1  to  8.52 

1899,   . 

3,741 

435 

1  to  8.60 

1900,   . 

3,983 

426 

1  to  9.32 

1901,   . 

4,001 

482 

1  to  8.30 

[436] 


STATISTICS    OF  MARRIAGE   AND    DIVORCE, 
NEW  HAMPSHIRE— con^mwerf. 


i-f.T,                                            ir      •                           T^-                        Ratio  of  Divorces 
ji-AK.                                              Marnaees.                    Divorces. 

to  Marriages. 

1902,  ..... 

1903,       

1904, 

1905,       

1906,        

4,060 
4,004 

483 
518 

1  to    8.50 
1  to    7.73 

NEW  JERSEY. 


1867, 

60 

1868,       . 

79 

1869, 

79 

1870, 

89 

1871, 

83 

1872, 

84 

1873, 

92 

1874, 

lOS 

1875, 

127 

1876, 

117 

1877, 

104 

1878, 

120 

1879, 

7,188 

146 

1  to  49.23 

1880, 

8,296 

135 

1  to  61. 4.-) 

1881, 

8,336 

147 

1  to  56.70 

1882, 

9,094 

190 

1  to  47.86 

1883, 

9,911 

176 

1  to  56.31 

1884, 

9,329 

234 

1  to  39.86 

1885, 

9,348 

186 

1  to  50.25 

1886, 

12,581 

286 

1  to  44 

1887, 

1888, 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

1895, 

1896, 

1897, 

1898, 

1899, 

1900, 

1901, 

1902, 

1903, 

1904,       . 

1905,       . 

1906, 

[  437  ] 


1867, 

1868, 

1869, 

1870, 

1871, 

1872, 

1873, 

1874, 

1875, 

1876, 

1877, 

1878, 

1879, 

1880, 

1881, 

1882, 

1883, 

1884, 

1885, 

1886, 

1887, 

1888, 

1889 

1890, 

1891, 

1892, 

1893, 

1894, 

1895, 

1896, 

1897, 

1898, 

1899, 

1900, 

1901, 

1902, 

1903, 

1904, 

1905, 

1906, 


STATISTICS  OF  MARRIAGE  AND  DIVORCE. 

NEW  MEXICO. 


Marriagea. 


12 
39 
44 
34 
39 
40 


Ratio  of  Divorces 
to  Marriagea. 


NEW  YORK. 


1867 

771 

1868,   .    .    o    -    . 

761 

1869,   .    .    .    .    . 

824 

1870,   o    o    .    .    . 

731 

1871,   .    .    .    .    . 

668 

[438] 


STATISTICS    OF  MARRIAGE   AND   DIVORCE. 
NEW  YORK— continued. 


YEAR. 

Marriages. 

Divorces. 

Ratio  of  Divorces 
to  Marriages. 

1872 

592 

1873, 

630 

1874, 

716 

1875, 

657 

1876, 

629 

1877, 

569 

1878, 

657 

1879, 

704 

1880, 

834 

1881, 

853 

1882, 

983 

1883, 

881 

1884, 

953 

1885, 

936 

1886, 

1,006 

1887, 

1888, 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

1895, 

1896, 

51,842 

1897, 

49,874 

1898, 

57,108 

1899, 

59,612 

1900, 

63,103 

1901, 

64,797 

1902,       . 

68,903 

1903, 

72,998 

1904, 

71,616 

Estimate  based   on  reports 

1905, 

for  first  ten  months  of  the 
year. 

1906,       

NORTH  CAROLINA. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 


21 
24 
22 
41 
22 
37 
46 
53 
65 


[  139  ] 


STATISTICS   OF  MARRIAGE   AND   DIVORCE. 
NORTH  CAROLINA— continued. 


1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


65 

46 

74 

77 

84 

83 

104 

88 

106 

117 

163 


Ratio  of  Divorces 
to  Marriages. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 


OHIO. 

29,230 
28,231 
28,910 
25,459 
24,627 
26,303 
26,460 
26,679 
26,445 
26,183 
25,156 
25,796 
26,399 
27,803 


901 

1  to  32.44 

848 

1  to  33.29 

1,013 

1  to  27.55 

1,008 

1  to  25.25 

975 

1  to  25.25 

1,063 

1  to  24.74 

1,126 

1  to  23.50 

1,159 

1  to  23 

1,177 

1  to  22.46 

1,153 

1  to  22.70 

1,160 

1  to  21.60 

1,345 

1  to  19.18 

1,441 

1  to  18.32 

1,553 

1  to  17.90 

[440] 


STATISTICS    OF   MARRIAGE   AND   DIVORCE. 
OHIO — continued. 


Ratio  of  Divorces 

YEAR. 

Marria;;e5. 

Divorces. 

to  Marriages. 

1881 

28,560 

1,594 

1   to  17.91 

1882, 

30,528 

1,701 

1  to  17.94 

1883, 
1884, 
1885, 
1886, 
1887, 
1888, 

30,659 
2s,7Ji) 
28,773 
28,034 
29,816 
30,012 

1,758 
1,746 
1,840 
1,889 
1,963 
2,148 

1  to  17.43 
1  to  16.44 
1  to  15.63 
1  to  15.15 
1  to  15.16 
1  to  13.65 

1889, 
1890, 
1891, 

31,231 
32,255 
33,890 

2,270 
2,306 
2,544 

1  to  14.15 
1  to  13.98 
1  to  13.32 

1892, 
1893, 

34,755 
35,071 

2,737 
2,913 

1  to  12.70 
1  to  12.03 

1894,       . 

33,858 

2,753 

1  to  12.29 

1895, 

33,186 

2,947 

1  to  1 1 . 26 

1896, 

35,386 

2.973 

1  to  11.90 

1897, 

34,692 

2,727 

1  to  12.72 

1898, 

35,799 

3,352 

1  to  10.68 

1899, 

34.912 

3,217 

1  to  10.85 

1900, 
1901, 

36.883 
38,242 

3,878 
3,877 

1  to  9.51 
1  to    9.86 

1902, 

37,476 

4,276 

1  to    8.76 

1903, 

43,021 

4,355 

1  to    9.87 

1904, 

1905, 
1906, 

OREGON. 


81 

66 

77 

64 

81 

79 

64 

99 

96 

110 

120 

138 

152 

174 

169 

170 

216 

188 

210 


[  441 


STATISTICS   OF   MARRIAGE   AND    DIVORCE. 
OREGON— con<inn€c?. 


Ratio  of  Divorces 
to  Marriages. 


1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


249 


PENNSYLVANIA. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 


575 

606 

689 

623 

665 

615 

707 

710 

655 

638 

677 

769 

725 

951 

995 

1,133 

1,046 

1,067 

1,018 

1,156 


[442] 


STATISTICS   OF   MARRIAGE   AND   DIVORCE. 
-PB^HSYLY  ATSl  A-continued. 


Ratio  of  Divorces 
to  Marriages. 


RHODE  ISLAND. 


1867,   . 

2,343 

195 

1  to  12 

1868,   . 

2,285 

209 

1  to  10.93 

1869,   . 

2,289 

167 

1  to  13.71 

1870, 

2,362 

202 

1  to  11.69 

1871,   . 

2,336 

165 

1  to  14.15 

1872, 

2,537 

222 

1  to  11.42 

1873,   . 

3,630 

193 

1  to  18.80 

1874,   . 

2,531 

246 

1  to  10.28 

1875, 

2,485 

184 

1  to  13.50 

1876, 

2,253 

191 

1  to  11.80 

1877,   . 

2,282 

197 

1  to  11. 58 

1878, 

2,323 

213 

1  to  10.90 

1879, 

2,396 

246 

1  to  9.74 

1880, 

2,769 

274 

1  to  10.10 

1881, 

2,750 

287 

1  to  9.58 

1882, 

2,634 

280 

1  to  9.40 

1883, 

2,620 

265 

1  to  9.88 

1884, 

2,528 

270 

1  to  9.36 

1885, 

2,488 

225 

1  to  11.05 

1886, 
1887, 
1888, 
1889, 
1  oon 

2,750 

257 

1  to  10.70 

1891, 
1892, 
1893, 
1894, 

' 

1895, 

[  4 13  ] 


STATISTICS    OF   MARRIAGE   AND    DIVORCE. 
RHODE  ISLATSU— continued. 


YEAR. 

Marriages. 

1  Ratio  of  DivorceB 
Divorces.                to  Marriages. 

1896, 

1897, 

1898, 

1899,       . 

1900, 

1901, 

1902, 

1903, 

1904, 

1905, 

1906, 

1 
1 

TENNESSEE. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877. 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1SS9, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 


287 
226 
299 
284 
319 
363 
431 
364 
387 
409 
506 
515 
551 
680 
586 
566 
626 
628 
797 
801 


[  444  ] 


STATISTICS   OF   :MARRIAGE   AND    DIVORCE. 

TENNESSEE— con^inu^d. 


YEAR 

1 

Marriages.                   DivorceB. 

i 

Ratio  of  Divorces 
to  Marriages. 

1901,  .... 

1902,       

1903 

1904 

1905,        

1906,        

TEXAS. 


91 
104 

108 

163 

233 

236 

2S6 

299 

370 

356 

455 

497 

641 

786 

9.59 

1,024 

1,185 

1,171 

1,182 

1,326 


[445] 


1867, 
1S68, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


STATISTICS  OF  MARRIAGE  AND  DIVORCE. 

UTAH. 


Marriages. 


Ratio  of  Divorcee 
to  Marriages. 


58 

75 

82 

84 

10 

134 

149 

295 

709 

914 

298 

122 

115 

145 

141 

162 

146 

142 

119 


1867, 

1868, 
1869, 
1870, 
1871, 


VERMONT. 

2,857 
2,961 
2,621 
2,928 
2,742 


[446] 


1.57 

1  to  18.20 

161 

1  to  18.39 

1.37 

1  to  19.30 

164 

1  to  17.85 

211 

1  to  13 

STATISTICS   OF   MARRIAGE    AND    DIVORCE. 
YERMO'ST— continued. 


YEAR. 

Marriajj'es. 

Divorces. 

Ratio  of  Divorces 
to  Marriages. 

1872,           .... 

2,749 

152 

1  to  18.08 

1873, 

2,741 

170 

1  to  16.12 

1874, 

2,724 

182 

1  to  14.96 

1875, 

2,710 

190 

1  to  14.26 

1876, 

2,642 

157 

1  to  16.82 

1877, 

2,635 

178 

I  to  14.24 

1878, 

2,770 

192 

1  to  14.42 

1879, 

2,708 

132 

1  to  20.51 

1880, 

2,697 

138 

1  to  19.54 

1881, 

2,763 

158 

1  to  17.48 

1882, 

2,883 

167 

1  to  17.26 

1883, 

2,836 

174 

1  to  16.30 

1884, 

2,676 

198 

1  to  13.51 

1885, 

2,709 

91 

1  to  29.77 

1886, 

2,588 

129 

1  to  20 

1887, 

2,661 

186 

1  to  14.31 

1888, 

2,647 

1.57 

1  to  16.88 

1889, 

2,846 

145 

1  to  19.66 

1890, 

2,406 

154 

1  to  15.59 

1891, 

2,817 

165 

1  to  17.07 

1892, 

2,905 

167 

1  to  16.79 

1893, 

2,941 

185 

1  to  15.89 

1894, 

2,828 

229 

1  to  12.35 

1895, 

2,955 

290 

1  to  10.19 

1896, 

3,041 

272 

1  to  11.18 

1897, 

2,816 

233 

1  to  12.07 

1898, 

2,880 

277 

1  to  12.69 

1899, 

2,910 

241 

1  to  12.08 

1900, 

3,098 

235 

1  to  13.19 

1901, 

3,054 

227 

1  to  13.45 

1902, 

3,146 

316 

1  to    9.95 

1903, 
1904 

3,135 

295 

1  to  10.62 

1905', 

1906, 

VIRGINIA. 

1867, 1 

90 

1868,       . 

77 

1869,       . 

67 

1870,       . 

62 

1871,       . 

86 

1872,       . 

65 

1873,       . 

88 

1874,       . 

91 

1875,       . 

106 

1876,       . 

112 

[447] 


STATISTICS    OF   MARRIAGE   AND    DIVORCE. 
VIRGINIA — continued. 


Marria;;eB. 


Ratio  of  Divorces 
to  MarriageB. 


1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1800, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 


WASHINGTON. 


113 
153 
132 
164 
179 
196 
219 
212 
185 
238 


20 
29 
12 
15 
20 
29 
29 
35 
21 
26 
28 
37 
40 
"65 
67 
73 
99 


[448] 


STATISTICS   OF   MARRIAGE    AND    DIVORCE. 
WASHINGTON— conimuerf. 


MarriaiL'es. 


Ratio  of  Divorces 
to  Marriages. 


1884, 
1885, 
1886, 
1887, 
1888, 
1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900, 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


109 
114 
128 


WEST  VIEGINIA. 


1867, 
1868, 
1869, 
1870, 
1871, 
1872, 
1873, 
1874, 
1875, 
1876, 
1877, 
1878, 
1879, 
1880, 
1881, 
1882, 
1883, 
1884, 
1885, 
1886, 
1887, 
1888, 


72 

60 

79 

80 

85 

89 

103 

91 

98 

110 

118 

142 

120 

204 

176 

193 

194 

235 

217 


29 


[449] 


STATISTICS   OF. MARRIAGE   AND   DIVORCE. 
WEST    YmGlNlA-continued. 


Marriages. 


Ratio  of  Divorces 
to  Marriages. 


1889, 
1890, 
1891, 
1892, 
1893, 
1894, 
1895, 
1896, 
1897, 
1898, 
1899, 
1900. 
1901, 
1902, 
1903, 
1904, 
1905, 
1906, 


WISCONSIN. 


1867, 

406 

1868, 

409 

1869, 

7,252 

417 

1  to  17.39 

1870, 

7,475 

396 

1  to  18.87 

1871, 

8,410 

378 

1  to  22.25 

1872, 

9,082 

414 

1  to  21.93 

1873, 

8,872 

390 

1  to  22.74 

1874, 

9,145 

416 

1  to  21.98 

1875, 

9,566 

455 

1  to  21.02 

1876, 

9,548 

471 

1  to  20.27 

1877, 
1878, 

9,686 
9,846 

396 

486 

1  to  24.46 
1  to  20.25 

1879, 

10,580 

468 

1  to  22.60 

1880, 

11,451 

535 

1  to  21.40 

1881, 

11,666 

599 

1  to  19.47 

1882, 

13,308 

638 

1  to  20.85 

1883, 

14,233 

679 

1  to  20.96 

1884, 

13,967 

637 

1  to  21.92 

1885, 

13,536 

698 

1  to  19.39 

1886, 

14,122 

700 

1  to  20.17 

1887, 

1888, 

1889, 

1890, 

1891, 

1892, 

1893, 

1894, 

[450] 


STATISTICS    OF   MARRIAGE    AND   DIVORCE. 
WlSCOmSTS— continued. 


Marriages. 


Ratio  of  Divorces 
to  Marriages. 


WYOMING. 


0 
3 
2 
13 
10 
19 
12 
14 
16 
18 
18 
25 
22 
21 
18 
31 
27 
32 
54 
46 


[451] 


STATISTICS   OF    MARRIAGE   AND   DIVORCE. 
WYOMING — continued. 


YEAR. 

Marriages. 

1 

1  Ratio  of  Divorces 
Divorces.                 to  Marriages. 

1901 

1902 

1903 

1904,       

1905,       

1906 

[452  1 


RESOLUTIONS 


ADOPTED  BY  THE  NATIONAL  CONGRESS  ON 
UNIFORM  DIVORCE  LAWS 

AT   ITS    SESSIONS   AT   WASHINGTON   D.  C.  FEBRUARY 

19-22,  1906. 

I.    AS  TO  FEDERAL  LEGISLATION. 

1.  It  is  the  sense  of  the  Congress  that  no  Federal  di- 
vorce law  is  feasible,  and  that  all  efforts  to  secure  the  passage  of 
a  constitutional  amendment — a  necessary  prerequisite — would 
be  futile. 

II.    AS  TO  STATE  LEGISLATION. 

1.  All  suits  for  divorce  should  be  brought  and  prose- 
cuted only  in  the  State  where  the  plaintiff  or  the  defendant 
had  a  bona  fide  residence. 

2.  When  the  courts  are  given  cognizance  of  suits  where 
the  plaintiff  was  domiciled  in  a  foreign  jurisdiction  at  the  time 
the  cause  of  complaint  arose,  it  should  be  insisted  that  relief 
will  not  be  given  unless  the  cause  of  divorce  was  included 
among  those  recognized  in  such  foreign  domicile. 

WTien  the  courts  are  given  cognizance  of  suits  where  the 
defendant  was  domiciled  in  a  foreign  jurisdiction  at  the  time 
the  cause  of  complaint  arose,  it  should  be  insisted  that  rehef 
by  absolute  divorce  will  not  be  given  unless  the  cause  of 

[453  1 


RESOLUTIONS. 

divorce  was  included  among  those  recognized  in  such  foreign 
domicile. 

3.  Where  jurisdiction  for  absolute  divorce  depends  upon 
the  residence  of  the  plaintiff,  not  less  than  two  years'  residence 
should  be  required  on  the  part  of  the  plaintiff  who  has 
changed  his  or  her  State  domicile  since  the  cause  of  divorce 
arose. 

Where  jurisdiction  for  absolute  divorce  depends  upon  the 
residence  of  the  defendant,  not  less  than  two  years'  residence 
should  be  required  on  the  part  of  the  defendant  who  has 
changed  his  or  her  State  domicile  since  the  cause  of  divorce 
arose. 

4.  An  innocent  and  injured  party,  husband  or  wife,  seek- 
ing a  divorce,  should  not  be  compelled  to  ask  for  a  dissolution 
of  the  bonds  of  matrimony,  but  should  be  allowed,  at  his  or 
her  option,  at  any  time,  to  apply  for  a  divorce  from  bed  and 
board.  Therefore,  divorces  a  mensa  should  be  retained  where 
already  existing,  and  provided  for  in  States  where  no  such 
rights  exist. 

5.  The  causes  for  divorce  existing  by  legislative  enact- 
ment may  be  classed  into  groups  that  would  be  approved  by 
the  common  consent  of  all  the  communities  represented  in  this 
Congress,  or  at  least  substantially  so.  These  causes  should  be 
restricted  to  offenses  by  one  party  to  the  marriage  contract 
against  the  other  of  so  serious  a  character  as  to  defeat  the  ob- 
jects of  the  marital  relation;  and  they  should  never  be  left  to 
the  discretion  of  a  court,  but  in  all  cases  should  be  clearly  and 
specifically  enumerated  in  the  statute.  Uniformity  in  this 
branch  of  the  law  is  much  to  be  desired;  but  the  evils  arising 
from  diverse  causes  in  the  different  States  will  be  very  greatly 
abated  if  migratory  divorces  are  prohibited. 

6.  While  the  following  causes  for  annulment  of  the  mar- 
[4541 


RESOLUTIONS. 

riage  contract,  for  divorce  from  the  bonds  of  matrimony,  and 
for  legal  separation  or  divorce  a  mensa  seem  to  be  in  accord- 
ance with  the  legislation  of  a  large  number  of  American  States, 
this  Congress,  desiring  to  see  the  number  of  causes  reduced 
rather  than  increased,  recommends  that  no  additional  causes 
should  be  recognized  in  any  State;  and  in  those  States  where 
causes  are  restricted,  no  change  is  called  for: 

A. — Causes  for  Annulment  of  the  Marriage  Contract. 

1.  Impotency. 

2.  Consanguinity  and  affinity,   properly  lim- 

ited. 

3.  Existing  marriage. 

4.  Fraud,  force  or  coercion. 

5.  Insanity,  unknown  to  the  other  party. 

B. — Causes  for  Divorce — a.  v.  m. 

1.  Adultery. 

2.  Bigamy. 

3.  Conviction  of  crime  in  certain  classes  of 

cases. 

4.  Intolerable  cruelty. 

5.  Wilful  desertion  for  two  years. 

6.  Habitual  drunkenness. 

G. — Causes  for  Legal  Separation,  or  Divorce,  a.  m. 

1.  Adultery. 

2.  Intolerable  cruelty. 

3.  Wilful  desertion  for  two  years. 

4.  Hopeless  insanity  of  husband. 

5.  Habitual  drunkenness. 

7.  If  conviction  for  crime  should  be  made  a  cause  for 
divorce,  it  should  be  required  that  such  conviction  has  been 
followed  by  a  continuous  imprisonment  for  at  least  two  years, 

[455] 


RESOLUTIONS. 

or  in  case  of  indeterminate  sentence,  one  year,  and  that  such 
conviction  has  been  the  result  of  trial  in  some  one  of  the  States 
of  the  Union,  or  in  a  Federal  court,  or  in  some  one  of  the 
countries  or  courts  subject  to  the  jurisdiction  of  the  United 
States,  or  in  some  foreign  country  granting  a  trial  by  jury, 
followed  by  an  equally  long  term  of  imprisonment. 

8.  A  decree  should  not  be  granted  a.  v.  m.  for  insanity 
arising  after  marriage. 

9.  In  those  States  where  desertion  is  a  cause  for  divorce, 
it  should  never  be  recognized  as  a  cause  unless  it  is  wilful  and 
is  persisted  in  for  a  period  of  at  least  two  years. 

10.  A  divorce  should  not  be  granted  unless  the  defend- 
ant has  been  given  full  and  fair  opportunity  by  notice  brought 
home  to  him  to  have  his  day  in  court,  when  his  residence  is 
known  or  can  be  ascertained. 

11.  Any  one  named  as  co-respondent  should  in  all  cases 
be  given  an  opportunity  to  intervene. 

12.  Hearings  and  trials  should  always  be  before  the 
court,  and  not  before  any  delegated  representative  of  it;  and 
in  all  uncontested  divorce  cases,  and  in  any  other  divorce  case 
where  the  court  may  deem  it  necessary  or  proper,  a  disinter- 
ested attorney  should  be  assigned  by  the  court,  actively  to 
defend  the  case. 

13.  A  decree  should  not  be  granted  unless  the  cause  is 
shown  by  affirmative  proof,  aside  from  any  admissions  on  the 
part  of  the  respondent. 

14.  A  decree  dissolving  the  marriage  tie  so  completely 
as  to  permit  the  remarriage  of  either  party  should  not  become 

[456] 


RESOLUTIONS. 

operative  until  the  lapse  of  a  reasonable  time  after  hearing  or 
trial  upon  the  merits  of  the  cause.  The  Wisconsin,  Illinois 
and  CaUfornia  rule  of  one  year  is  recommended. 

15.  In  no  case  should  the  children  born  during  cover- 
ture be  basterdized,  excepting  where  they  are  the  offspring  of 
bigamous  marriages  or  the  impossibiUty  of  access  by  the  hus- 
band has  been  proved. 

16.  Each  State  should  adopt  a  statute  embodying  the 
principle  contained  in  the  Massachusetts  Act,  which  is  as  fol- 
lows:— "If  an  inhabitant  of  this  Commonwealth  goes  into 
another  State  or  country  to  obtain  a  divorce  for  a  cause  which 
occurred  here  while  the  parties  resided  here  or  for  a  cause 
which  would  not  authorize  a  divorce  by  the  laws  of  this  Com- 
monwealth, a  divorce  so  obtained  shall  be  of  no  force  or  effect 
in  this  Commonwealth." 

17.  Fraud  or  collusion  in  obtaining  or  attempting  to  ob- 
tain divorces  should  be  made  statutory  crimes  by  the  criminal 
code. 


[457] 


APPENDIX 


HADDOCK    V.    HADDOCK 

band  in  that  State  in  1899,  and  there  obtained  personal  service 
upon  him.  The  complaint  charged  that  the  parties  had  been 
married  in  New  York  in  1868,  where  they  both  resided  and 
where  the  wife  continued  to  reside,  and  it  was  averred  that  the 
husband,  immediately  following  the  marriage,  abandoned  the 
wife,  and  thereafter  failed  to  support  her,  and  that  he  was  the 
owner  of  property.  A  decree  of  separation  from  bed  and  board 
and  for  alimony  was  prayed.  The  answer  admitted  the  mar- 
riage, but  averred  that  its  celebration  was  procured  by  the 
fraud  of  the  wife,  and  that  immediately  after  the  marriage  the 
parties  had  separated  by  mutual  consent.  It  was  also  alleged 
that  during  the  long  period  between  the  celebration  and  the 
bringing  of  this  action  the  wife  had  in  no  manner  asserted  her 
rights  and  was  barred  by  her  laches  from  doing  so.  Besides, 
the  answer  alleged  that  the  husband  had,  in  1881,  obtained 
in  a  court  of  the  State  of  Connecticut  a  cUvorce  which  was 
conclusive.  At  the  trial  before  a  referee  the  judgment  roll  in 
the  suit  for  divorce  in  Connecticut  was  offered  by  the  husband 
and  was  objected  to,  first,  because  the  Connecticut  court  had 
not  obtained  jurisdiction  over  the  person  of  the  defendant  wife, 
as  the  notice  of  the  pendency  of  the  petition  was  by  pubUca- 
tion  and  she  had  not  appeared  in  the  action;  and,  second,  be- 
cause the  ground  upon  which  the  divorce  was  granted,  viz., 
desertion  by  the  wife,  was  false.  The  referee  sustained  the 
objections  and  an  exception  was  noted.  The  judgment  roll 
in  question  was  then  marked  for  identification  and  forms  a 
part  of  the  record  before  us. 

Having  thus  excluded  the  proceedings  in  the  Connecticut 
court,  the  referee  found  that  the  parties  were  married  in  New 
York  in  1868,  that  the  wife  was  a  resident  of  the  State  of 
New  York,  that  after  the  marriage  the  parties  never  lived  to- 
gether, and  shortly  thereafter  that  the  husband  without  justi- 
fiable cause  abandoned  the  wife,  and  has  since  neglected  to 
provide  for  her.  The  legal  conclusion  was  that  the  wife  was 
entitled  to  a  separation  from  bed  and  board  and  alimony  in 

[463] 


THE   LAW   OF   MARRIAGE    AND    DIVORCE 

the  sum  of  $780  a  year  from  the  date  of  the  judgment.  The 
action  of  the  referee  was  sustained  by  the  Supreme  Court  of 
the  State  of  New  York,  and  a  judgment  for  separation  and 
alimony  was  entered  in  favor  of  the  wife.  This  judgment  was 
affirmed  by  the  Court  of  Appeals.  As  by  the  law  of  the  State 
of  New  York,  after  the  affirmance  by  the  Court  of  Appeals,  the 
record  was  remitted  to  the  Supreme  Court,  this  writ  of  error 
to  that  court  was  prosecuted. 

The  Federal  question  is,  Did  the  court  below  violate  the 
Constitution  of  the  United  States  by  refusing  to  give  to  the 
decree  of  divorce  rendered  in  the  State  of  Connecticut  the  faith 
and  credit  to  which  it  was  entitled? 

As  the  averments  concerning  the  alleged  fraud  in  contracting 
the  marriage  and  the  subsequent  laches  of  the  wife  are  solely 
matters  of  state  cognizance,  we  may  not  allow  them  to  even 
indirectly  influence  our  judgment  upon  the  Federal  question 
to  which  we  are  confined,  and  we,  therefore,  put  these  subjects 
entirely  out  of  view.  Moreover,  as,  for  the  purpose  of  the  Fed- 
eral issue,  we  are  concerned  not  with  the  mere  form  of  proceed- 
ing by  which  the  Federal  right,  if  any,  was  denied,  but  alone 
have  power  to  decide  whether  such  right  was  denied,  we  do  not 
inquire  whether  the  New  York  court  should  preferably  have 
admitted  the  record  of  the  Connecticut  divorce  suit,  and,  after 
so  admitting  it,  determine  what  effect  it  would  give  to  it  in- 
stead of  excluding  the  record  and  thus  refusing  to  give  effect 
to  the  judgment.  In  order  to  decide  whether  the  refusal  of 
the  court  to  admit  in  evidence  the  Connecticut  decree  denied 
to  that  decree  the  efficacy  to  which  it  was  entitled  under  the 
full  faith  and  credit  clause,  we  must  first  examine  the  judgment 
roll  of  the  Connecticut  cause  in  order  to  fix  the  precise  circum- 
stances under  which  the  decree  in  that  cause  was  rendered. 

Without  going  into  detail,  it  suffices  to  say  that  on  the  face 
of  the  Connecticut  record  it  appeared  that  the  husband,  alleg- 
ing that  he  had  acquired  a  domicil  in  Connecticut,  sued  the 
wife  in  that  State  as  a  person  whose  residence  was  unknown, 
[464] 


HADDOCK    V.    HADDOCK 

but  whose  last  known  place  of  residence  was  in  the  State  of 
New  York,  at  a  place  stated,  and  charged  desertion  by  the  wife 
and  fraud  on  her  part  in  procuring  the  marriage;  and,  further, 
it  is  shown  that  no  service  was  made  upon  the  wife  except  by 
pubhcation  and  by  mailing  a  copy  of  the  petition  to  her 
at  her  last  knowTi  place  of  residence  in  the  State  of  New 
York. 

With  the  object  of  confining  our  attention  to  the  real  ques- 
tion arising  from  this  condition  of  the  Connecticut  record,  we 
state  at  the  outset  certain  legal  propositions  irrevocably  con- 
cluded by  previous  decisions  of  this  court,  and  which  are  re- 
quired to  be  borne  in  mind  in  analyzing  the  ultimate  issue  to 
be  decided. 

First.  The  requirement  of  the  Constitution  is  not  that  some, 
but  that  full,  faith  and  credit  shall  be  given  by  States  to  the 
judicial  decrees  of  other  States.  That  is  to  say,  where  a  decree 
rendered  in  one  State  is  embraced  by  the  full  faith  and  crecUt 
clause  that  constitutional  provision  commands  that  the  other 
States  shall  give  to  the  decree  the  force  and  effect  to  which  it 
was  entitled  in  the  State  where  rendered.  Harding  v.  Hard- 
ing, 198  U.  S.  317. 

Second.  Where  a  personal  judgment  has  been  rendered  in 
the  courts  of  a  State  against  a  non-resident  merely  upon  con- 
structive service  and,  therefore,  without  acquiring  jurisdiction 
over  the  person  of  the  defendant,  such  judgment  may  not  be 
enforced  in  another  State  in  virtue  of  the  full  faith  and  credit 
clause.  Indeed,  a  personal  judgment  so  rendered  is  by  oper- 
ation of  the  due  process  clause  of  the  Fourteenth  Amendment 
void  as  against  the  non-resident,  even  in  the  State  where  ren- 
dered, and,  therefore,  such  non-resident  in  virtue  of  rights 
granted  by  the  Constitution  of  the  United  States  may  suc- 
cessfully resist  even  in  the  State  where  rendered,  the  en- 
forcement of  such  a  judgment.  Pennoyer  v.  Nejf,  95  U.  S.  714. 
The  facts  in  that  case  were  these:  Neff,  who  was  a  resident  of 
a  State  other  than  Oregon,  owned  a  tract  of  land  in  Oregon. 
80  [465] 


THE    LAW   OF   MARRIAGE   AND    DIVORCE 

]\Iitchell,  a  resident  of  Oregon,  brought  a  suit  in  a  court  of  that 
State  upon  a  money  demand  against  Neff.  The  Oregon  stat- 
utes required,  in  the  case  of  personal  action  against  a  non- 
resident, a  pubhcation  of  notice,  calling  upon  the  defendant  to 
appear  and  defend,  and  also  required  the  mailing  to  such  de- 
fendant at  his  last  known  place  of  residence  of  a  copy  of  the 
summons  and  complaint.  Upon  affidavit  of  the  absence  of 
NefT,  and  that  he  resided  in  the  State  of  Cahfornia,  the  exact 
place  being  unknown,  the  pubhcation  required  by  the  statute 
was  ordered  and  made,  and  judgment  by  default  was  entered 
against  NefT.  Upon  this  judgment  execution  was  issued  and 
real  estate  of  Neff  was  sold  and  was  ultimately  acquired  by 
Pennoyer.  Neff  sued  in  the  Circuit  Court  of  the  United  States 
for  the  District  of  Oregon  to  recover  the  property,  and  the 
question  presented  was  the  vahdity  in  Oregon  of  the  judgment 
there  rendered  against  N^ff.  After  the  most  elaborate  consid- 
eration it  was  expressly  decided  that  the  judgment  rendered 
in  Oregon  under  the  circumstances  stated  was  void  for  want 
of  jurisdiction  and  was  repugnant  to  the  due  process  clause  of 
the  Constitution  of  the  United  States.  The  ruHng  was  based 
on  the  proposition  that  a  court  of  one  State  could  not  acquire 
jurisdiction  to  render  a  personal  judgment  against  a  non-resi- 
dent who  did  not  appear  by  the  mere  pubhcation  of  a  summons, 
and  that  the  want  of  power  to  acquire  such  jurisdiction  by  pub- 
lication could  not  be  aided  by  the  fact  that  under  the  statutes 
of  the  State  in  which  the  suit  against  the  non-resident  was 
brought  the  sencUng  of  a  copy  of  the  summons  and  complaint 
to  the  post  office  address  in  another  State  of  the  defendant  was 
required  and  comphed  with.     The  court  said  (p.  727): 

"Process  from  the  tribunals  of  one  State  cannot  run  into 
another  State,  and  summon  parties  there  domiciled  to  leave 
its  territory  and  respond  to  proceedings  against  them.  Pub- 
hcation of  process  or  notice  within  the  State  where  the  tribunal 
sits  cannot  create  any  greater  obhgation  upon  the  non-resident 
to  appear.  Process  sent  to  him  out  of  the  State  and  process 
[466] 


HADDOCK  V.   HADDOCK 

published  within  it  are  equally  unavailing  in  proceedings  to 
establish  his  personal  liability." 

And  the  doctrine  thus  stated  but  expressed  a  general  principle 
expounded  in  previous  decisions.  Bischojf  v.  Wethered,  9  Wall. 
812.  In  that  case,  speaking  of  a  money  judgment  recovered 
in  the  Common  Pleas  of  Westminster  Hall,  England,  upon  per- 
sonal notice  served  in  the  city  of  Baltimore,  ^Ir.  Justice  Brad- 
ley, J.,  speaking  for  the  court  said  (p.  814): 

"It  is  enough  to  say  of  this  proceeding  that  it  was  wholly 
without  jurisdiction  of  the  person,  and  whatever  validity  it 
may  have  in  England,  by  virtue  of  statute  law  against  prop- 
erty of  the  defendant  there  situate,  it  can  have  no  vaUchty  here, 
even  of  a  prima  facie  character.     It  is  simply  null. " 

Third.  The  principles,  however,  stated  in  the  previous 
proposition  are  controlling  only  as  to  judgments  in  personam 
and  do  not  relate  to  proceedings  in  rem.  That  is  to  say,  in 
consequence  of  the  authority  which  government  possesses  over 
things  within  its  borders  there  is  jurisdiction  in  a  court  of  a 
State  by  a  proceeding  in  rem,  after  the  gi\ang  of  reasonable 
opportunity  to  the  owner  to  defend,  to  affect  things  within  the 
jurisdiction  of  the  court,  even  although  jurisdiction  is  not 
directly  acquired  over  the  person  of  the  owner  of  the  thing. 
Pennoyer  v.  Nejf,  supra. 

Fourth.  The  general  rule  stated  in  the  second  proposition 
is,  moreover,  limited  by  the  inherent  power  which  all  govern- 
ments must  possess  over  the  marriage  relation,  its  formation 
and  dissolution,  as  regards  their  own  citizens.  From  this 
exception  it  results  that  where  a  court  of  one  State,  con- 
formably to  the  laws  of  such  State,  or  the  State  through  its 
legislative  department,  has  acted  concerning  the  dissolution 
of  the  marriage  tie,  as  to  a  citizen  of  that  State,  such  action 
is  binding  in  that  State  as  to  such  citizen,  and  the  vaHdity  of 
the  judgment  may  not  therein  be  questioned  on  the  ground 
that  the  action  of  the  State  in  dealing  with,  its  own  citizen 
concerning  the  marriage  relation  was  repugnant  to  the  due 

[467] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE 

process  clause  of  the  Constitution,  Maynard  v.  Hill,  125 
U.  S.  190.  In  that  case  the  facts  were  these:  Maynard  was 
married  in  Vermont,  and  the  husband  and  wife  removed  to 
Ohio,  from  whence  Maynard  left  his  wife  and  family  and  went 
to  California.  Subsequently  he  acquired  a  domicil  in  the 
Territory  of  Washington.  Being  there  so  domiciled,  an  act 
of  the  legislature  of  the  Territory  was  passed  granting  a  di- 
vorce "to  the  husband.  Maynard  continued  to  reside  in  Wash- 
ington, and  there  remarried  and  died.  The  children  of  the 
former  wife,  claiming  in  right  of  their  mother,  sued  in  a  court 
of  the  Territory  of  Washington  to  recover  real  estate  situated 
in  the  Territory,  and  one  of  the  issues  for  decision  was  the 
validity  of  the  legislative  divorce  granted  to  the  father.  The 
statute  was  assailed  as  invalid,  on  the  ground  that  Mrs. 
Maynard  had  no  notice  and  that  she  was  not  a  resident  of 
the  Territory  when  the  act  was  passed.  From  a  decree  of 
the  Supreme  Court  of  the  Territory  adverse  to  their  claim  the 
children  brought  the  case  to  this  court.  The  power  of  the 
territorial  legislature,  in  the  absence  of  restrictions  in  the 
organic  act,  to  grant  a  divorce  to  a  citizen  of  the  Territory 
was,  however,  upheld,  in  view  of  the  nature  and  extent  of  the 
authority  which  government  possessed  over  the  marriage  rela- 
tion. It  was  therefore  decided  that  the  courts  of  the  Territory 
committed  no  error  in  giving  effect  within  the  Territory  to  the 
divorce  in  question.  And  as  a  corollary  of  the  recognized 
power  of  a  government  thus  to  deal  with  its  own  citizen  by  a 
decree  which  would  be  operative  within  its  own  borders,  ir- 
respective of  any  extraterritorial  efficacy,  it  follows  that  the 
right  of  another  sovereignty  exists,  under  principles  of  comity, 
to  give  to  a  decree  so  rendered  such  efficacy  as  to  that  gov- 
ernment may  seem  to  be  justified  by  its  conceptions  of  duty 
and  public  policy. 

Fifth.  It  is  no  longer  open  to  question  that  where  husband 
and  wife  are  domiciled  in  a  State  there  exists  jurisdiction  in 
such  State,  for  good  cause,  to  enter  a  decree  of  divorce  which 
[468] 


HADDOCK  V.   HADDOCK 

will  be  entitled  to  enforcement  in  another  State  by  virtue  of 
the  full  faith  and  credit  clause.  It  has,  moreover,  been  de- 
cided that  where  a  bona  fide  domicil  has  been  acquired  in  a 
State  by  either  of  the  parties  to  a  marriage,  and  a  suit  is 
brought  by  the  domiciled  party  in  such  State  for  a  divorce, 
the  courts  of  that  State,  if  they  acquire  personal  jurisdiction 
also  of  the  other  party,  have  authority  to  enter  a  decree  of 
divorce,  entitled  to  be  enforced  in  every  State  by  the  full 
faith  and  credit  clause.     Cheever  v.  Wilson,  9  Wall.  108. 

Sixth.  Where  the  domicil  of  matrimony  was  in  a  particular 
State,  and  the  husband  abandons  his  wife  and  goes  into  an- 
other State  in  order  to  avoid  his  marital  obligations,  such  other 
State  to  which  the  husband  has  wrongfully  fled  does  not,  in 
the  nature  of  things,  become  a  new  domicil  of  matrimony, 
and,  therefore,  is  not  to  be  treated  as  the  actual  or  constructive 
domicil  of  the  wife;  hence,  the  place  where  the  wife  was 
domiciled  when  so  abandoned  constitutes  her  legal  domicil 
until  a  new  actual  domicil  be  by  her  elsewhere  acquired. 
This  was  clearly  expressed  in  Barber  v.  Barber,  21  How.  582, 
where  it  was  said  (p.  595): 

"The  general  rule  is,  that  a  voluntary  separation  will  not 
give  to  the  wife  a  different  domiciliation  in  law  from  that  of 
her  husband.  But  if  the  husband,  as  is  the  fact  in  this  case, 
abandons  their  domicil  and  his  wife,  to  get  rid  of  all  those 
conjugal  obligations  which  the  marriage  relation  imposes  upon 
him,  neither  giving  to  her  the  necessaries  nor  the  comforts 
suitable  to  their  condition  and  his  fortune,  and  relinquishes 
altogether  his  marital  control  and  protection,  he  yields  up  that 
power  and  authority  over  her  which  alone  makes  his  domicil 
hers.     ..." 

And  the  same  doctrine  was  expressly  upheld  in  Cheever  v. 
Wilson,  supra,  where  the  court  said  (9  Wall.  123) : 

"It  is  insisted  that  Cheever  never  resided  in  Indiana;  that 
the  domicil  of  the  husband  is  the  wife's,  and  that  she  cannot 
have  a  different  one  from  his.     The  converse  of  the  latter 

[469] 


THE    LAW    OF    MARRIAGE   AND   DIVORCE 

proposition  is  so  well  settled  that  it  would  be  idle  to  discuss 
it.  The  rule  is  that  she  may  acquire  a  separate  domicil  when- 
ever it  is  necessary  or  proper  that  she  should  do  so.  The  right 
springs  from  the  necessity  of  its  exercise,  and  endures  as  long 
as  the  necessity  continues." 

Seventh.  So  also  it  is  settled  that  where  the  domicil  of  a 
husband  is  in  a  particular  State,  and  that  State  is  also  the 
domicil  of  matrimony,  the  courts  of  such  State  having 
jurisdiction  over  the  husband  may,  in  virtue  of  the  duty 
of  the  wife  to  be  at  the  matrimonial  domicil,  disregard  an 
unjustifiable  absence  therefrom,  and  treat  the  wife  as  hav- 
ing her  domicil  in  the  State  of  the  matrimonial  domicil  for 
the  purpose  of  the  dissolution  of  the  marriage,  and  as  a 
result  have  power  to  render  a  judgment  dissolving  the  mar- 
riage which  will  be  binding  upon  both  parties,  and  will  be 
entitled  to  recognition  in  all  other  States  by  virtue  of  the 
full  faith  and  credit  clause.  Atherton  v.  Atherton,  181  U.  S. 
155. 

Coming  to  apply  these  settled  propositions  to  the  case  before 
us  three  things  are  beyond  dispute:  a.  In  view  of  the  au- 
thority which  government  possesses  over  the  marriage  rela- 
tion, no  question  can  arise  on  this  record  concerning  the  right 
of  the  State  of  Connecticut  within  its  borders  to  give  effect  to 
the  decree  of  divorce  rendered  in  favor  of  the  husband  by  the 
courts  of  Connecticut,  he  being  at  the  time  when  the  decree 
was  rendered  domiciled  in  that  State,  h.  As  New  York  was 
the  domicil  of  the  wife  and  the  domicil  of  matrimony,  from 
which  the  husband  fled  in  disregard  of  his  duty,  it  clearly  re- 
sults from  the  sixth  proposition  that  the  domicil  of  the  wife 
continued  in  New  York.  c.  As  then  there  can  be  no  question 
that  the  wife  was  not  constructively  present  in  Connecticut 
by  virtue  of  a  matrimonial  domicil  in  that  State,  and  was  not 
there  individually  domiciled  and  did  not  appear  in  the  divorce 
cause,  and  was  only  constructively  served  with  notice  of  the 
pendency  of  that  action,  it  is  apparent  that  the  Connecticut 
[470] 


HADDOCK   V.    HADDOCK 

court  did  not  acquire  jurisdiction  over  the  wife  within  the 
fifth  and  seventh  propositions;  that  is,  did  not  acquire  such 
jurisdiction  by  virtue  of  the  domicil  of  the  wife  within  the 
State  or  as  the  result  of  personal  service  upon  her  within  its 
borders. 

These  subjects  being  thus  eliminated,  the  case  reduces  itself 
to  this:  Whether  the  Connecticut  court,  in  virtue  alone  of  the 
domicil  of  the  husband  in  that  State,  had  jurisdiction  to  ren- 
der a  decree  against  the  wife  under  the  circumstances  stated, 
which  was  entitled  to  be  enforced  in  other  States  in  and  by 
virtue  of  the  full  faith  and  credit  clause  of  the  Constitution. 
In  other  words,  the  final  question  is  whether  to  enforce  in 
another  jurisdiction  the  Connecticut  decree  would  not  be  to 
enforce  in  one  State,  a  personal  judgment  rendered  in  another 
State  against  a  defendant  over  whom  the  court  of  the  State 
rendering  the  judgment  had  not  acquired  jurisdiction.  Other- 
wise stated,  the  question  is  this:  Is  a  proceeding  for  divorce 
of  such  an  exceptional  character  as  not  to  come  within  the 
rule  limiting  the  authority  of  a  State  to  persons  \vithin  its 
jurisdiction,  but  on  the  contrary,  because  of  the  power  which 
government  may  exercise  over  the  marriage  relation,  constitutes 
an  exception  to  that  rule,  and  is  therefore  embraced  either 
within  the  letter  or  spirit  of  the  doctrines  stated  in  the  third 
and  fourth  propositions? 

Before  reviewing  the  authorities  rehed  on  to  establish  that 
a  divorce  proceeding  is  of  the  exceptional  nature  indicated, 
we  propose  first  to  consider  the  reasons  advanced  to  sustain 
the  contention.  In  doing  so,  however,  it  must  always  be 
borne  in  mind  that  it  is  elementary  that  where  the  full  faith 
and  credit  clause  of  the  Constitution  is  invoked  to  compel  the 
enforcement  in  one  State  of  a  decree  rendered  in  another,  the 
question  of  the  jurisdiction  of  the  court  by  which  the  decree 
was  rendered  is  open  to  inquiry.  And  if  there  was  no  juris- 
diction, either  of  the  subject  matter  or  of  the  person  of  the 
defendant,  the  courts  of  another  State  are  not  required,  by 

[471] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE 

virtue  of  the  full  faith  and  credit  clause  of  the  Constitution, 
to  enforce  such  decree.  National  Exchange  Bank  v.  Wiley, 
195  U.  S.  259,  269,  and  cases  cited. 

I.  The    wide    scope    of    the    authority    which    government 
possesses  over  the  contract  of  marriage  and  its  dissolution 
is  the  basis  upon  which  it  is  argued  that  the  domicil  within 
one  State  of  one  party  to  the  marriage  gives  to  such  a  State 
jurisdiction  to  decree  a  dissolution  of  the  marriage  tie  which 
will  be  obligatory  in  all  the  other  States  by  force  of  the  full 
faith  and  credit  clause  of  the  Constitution.     But  the  deduc- 
tion is  destructive  of  the  premise  upon  which  it  rests.    This 
becomes  clear  when  it  is  perceived  that  if  one  government, 
because  of  its  authority  over  its  own  citizens  has  the  right  to 
dissolve  the  marriage  tie  as  to  the  citizen  of  another  jurisdic- 
tion, it  must  follow  that  no  government  possesses  as  to  its 
own  citizens,  power  over  the  marriage  relation  and  its  dissolu- 
tion.    For  if  it  be  that  one  government  in  virtue  of  its  authority 
over  marriage  may  dissolve  the  tie  as  to  citizens  of  another 
government,  other  governments  would  have  a  similar  power, 
and  hence  the  right  of  every  government  as  to  its  own  citizens 
might  be  rendered  nugatory  by  the  exercise  of  the  power  which 
every  other  government  possessed.     To  concretely  illustrate: 
If  the  fact  be  that  where  persons  are  married  in  the  State  of 
New  York  either  of  the  parties  to  the  marriage  may,  in  viola- 
tion of  the  marital  obligations,  desert  the  other  and  go  into 
the  State  of  Connecticut,  there  acquiring  a  domicil  and,  procure 
a  dissolution  of  the  marriage  which  would  be  binding  in  the 
State  of  New  York  as  to  the  party  to  the  marriage  there  domi- 
ciled, it  would  follow  that  the  power  of  the  State  of  New  York 
as  to  the  dissolution  of  the  marriage  as  to  its  domiciled  citizen 
would  be  of  no  practical  avail.     And  conversely  the  like  re- 
sult would  follow  if  the  marriage  had  been  celebrated  in  Con- 
necticut and  desertion  had  been  from  that  State  to  New  York, 
and  consequently  the  decree  of  divorce  had  been  rendered  in 
New  York.     Even  a  superficial  analysis  will  make  this  clear. 
[472] 


HADDOCK   V.   HADDOCK 

Under  the  rule  contended  for  it  would  follow  that  the  States 
whose  laws  were  the  most  lax  as  to  length  of  residence  required 
for  domicil,  as  to  causes  for  divorce  and  to  speed  of  procedure 
concerning  divorce,  would  in  effect  dominate  all  the  other 
States.  In  other  words,  any  person  who  was  married  in  one 
State  and  who  wished  to  violate  the  marital  obligations  would 
be  able,  by  following  the  lines  of  least  resistance,  to  go  into  the 
State  whose  laws  were  the  most  lax,  and  there  avail  of  them 
for  the  purpose  of  the  severance  of  the  marriage  tie  and  the 
destruction  of  the  rights  of  the  other  party  to  the  marriage 
contract,  to  the  overthrow  of  the  laws  and  public  pohcy  of 
the  other  States.  Thus  the  argmnent  comes  necessarily  to 
this,  that  to  preserve  the  lawful  authority  of  all  the  States 
over  marriage  it  is  essential  to  decide  that  all  the  States  have 
such  authority  only  at  the  sufferance  of  the  other  States. 
And  the  considerations  just  stated  serve  to  dispose  of  the 
argument  that  the  contention  relied  on  finds  support  in  the 
ruling  made  in  Maynard  v.  Hill,  referred  to  in  the  fourth 
proposition,  which  was  at  the  outset  stated.  For  in  that  case 
the  sole  question  was  the  effect  within  the  Territory  of  Wash- 
ington of  a  legislative  divorce  granted  in  the  Territory  to  a 
citizen  thereof.  The  upholding  of  the  divorce  ^^^thin  the 
Territory  was,  therefore,  but  a  recognition  of  the  power  of 
the  Territorial  government,  in  virtue  of  its  authority  over 
marriage,  to  deal  with  a  person  domiciled  within  its  jurisdic- 
tion. The  case,  therefore,  did  not  concern  the  extraterritorial 
efficacy  of  the  legislative  divorce.  In  other  words,  whilst  the 
ruling  recognized  the  ample  powers  which  goverrmient  possesses 
over  marriage  as  to  one  within  its  jurisdiction,  it  did  not 
purport  to  hold  that  such  ample  powers  might  be  exercised 
and  enforced  by  virtue  of  the  Constitution  of  the  United  States 
in  another  jurisdiction  as  to  citizens  of  other  States  to  whom 
the  jurisdiction  of  the  Territory  did  not  extend. 

The  anomalous  result  which  it  is  therefore  apparent  would 
arise  from  maintaining  the  proposition  contended  for  is  made 

[473] 


THE    LAW   OF   MARRIAGE    AND   DIVORCE. 

more  manifest  by  considering  the  instrument  from  which  such 
result  would  be  produced,  that  is,  the  full  faith  and  credit 
clause  of  the  Constitution.  No  one  denies  that  the  States,  at 
the  time  of  the  adoption  of  the  Constitution,  possessed  full 
power  over  the  subject  of  marriage  and  divorce.  No  one, 
moreover,  can  deny  that,  prior  to  the  adoption  of  the  Con- 
stitution, the  extent  to  which  the  States  would  recognize  a 
divorce  obtained  in  a  foreign  jurisdiction  depended  upon  their 
conceptions  of  duty  and  comity.  Besides,  it  must  be  conceded 
that  the  Constitution  delegated  no  authority  to  the  Govern- 
ment of  the  United  States  on  the  subject  of  marriage  and 
divorce.  Yet,  if  the  proposition  be  maintained,  it  would  follow 
that  the  destruction  of  the  power  of  the  States  over  the  dissolu- 
tion of  marriage,  as  to  their  own  citizens,  would  be  brought 
about  by  the  operation  of  the  full  faith  and  credit  clause  of 
the  Constitution.  That  is  to  say,  it  would  come  to  pass  that, 
although  the  Constitution  of  the  United  States  does  not  in- 
terfere with  the  authority  of  the  States  over  marriage,  never- 
theless the  full  faith  and  credit  clause  of  that  instrument 
destroyed  the  authority  of  the  States  over  the  marriage  rela- 
tion. And  as  the  Government  of  the  United  States  has  no 
delegated  authority  on  the  subject,  that  Government  would 
be  powerless  to  prevent  the  evil  thus  brought  about  by  the 
full  faith  and  credit  clause.  Thus  neither  the  States  nor  the 
National  Government  would  be  able  to  exert  that  authority 
over  the  marriage  tie  possessed  by  every  other  civilized  gov- 
ernment. Yet  more  remarkable  would  be  such  result  when 
it  is  borne  in  mind  that,  when  the  Constitution  was  adopted, 
nowhere,  either  in  the  mother  country  or  on  the  continent  of 
Europe,  either  in  adjudged  cases  or  in  the  treatises  of  au- 
thoritative writers,  had  the  theory  ever  been  upheld  or  been 
taught  or  even  suggested  that  one  government,  solely  because 
of  the  domicil  within  its  borders  of  one  of  the  parties  to  a  mar- 
riage, had  authority,  without  the  actual  or  constructive  pres- 
ence of  the  other,  to  exert  its  authority  by  a  dissolution  of  the 
[474] 


HADDOCK   V.    HADDOCK 

marriage  tie,  which  exertion  of  power  it  would  be  the  duty 
of  other  States  to  respect  as  to  those  subject  to  their  jurisdic- 
tion. 

II.  It  is  urged  that  the  suit  for  divorce  was  a  proceeding 
in  rem,  and,  therefore,  the  Connecticut  court  had  complete 
jurisdiction  to  enter  a  decree  as  to  the  res,  entitled  to  be 
enforced  in  the  State  of  New  York.  But  here  again  the  argu- 
ment is  contradictory.  It  rests  upon  the  theory  that  juris- 
diction in  Connecticut  depended  upon  the  domicil  of  the 
person  there  suing  and  yet  attributes  to  the  decree  resting 
upon  the  domicil  of  one  of  the  parties  alone  a  force  and  effect 
based  upon  the  theory  that  a  thing  within  the  jurisdiction  of 
Connecticut  was  the  subject  matter  of  the  controversy.  But 
putting  this  contradiction  aside,  what,  may  we  ask,  was  the 
res  in  Connecticut?  Certainly  it  cannot  in  reason  be  said  that 
it  was  the  cause  of  action  or  the  mere  presence  of  the  person 
of  the  plaintiff  within  the  jurisdiction.  The  only  possible 
theory  then  upon  which  the  proposition  proceeds  must  be 
that  the  res  in  Connecticut,  from  which  the  jurisdiction  is 
assumed  to  have  arisen,  was  the  marriage  relation.  But  as 
the  marriage  was  celebrated  in  New  York  between  citizens 
of  that  State,  it  must  be  admitted,  under  the  hypothesis 
stated,  that  before  the  husband  deserted  the  wife  in  New 
York  the  res  was  in  New  York  and  not  in  Connecticut.  As 
the  husband,  after  wrongfully  abandoning  the  wife  in  New 
York,  never  established  a  matrimonial  domicil  in  Connecticut, 
it  cannot  be  said  that  he  took  with  him  the  marital  relation 
from  which  he  fled  to  Connecticut.  Conceding,  however,  that 
he  took  with  him  to  Connecticut  so  much  of  the  marital  rela- 
tion as  concerned  his  individual  status,  it  cannot  in  reason 
be  said  that  he  did  not  leave  in  New  York  so  much  of  the 
relation  as  pertained  to  the  status  of  the  wife.  From  any 
point  of  view,  then,  under  the  proposition  referred  to,  if  the 
marriage  relation  be  treated  as  the  res,  it  follows  that  it  was 
divisible,  and  therefore  there  was  a  res  in  the  State  of  New 

[475] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE 

York  and  one  in  the  State  of  Connecticut.  Thus  considered, 
it  is  clear  that  the  power  of  one  State  did  not  extend  to  affect- 
ing the  thing  situated  in  another  State.  As  illustrating  this 
conception,  we  notice  the  case  of  Mississippi  &  Missouri 
R.  R.  Co.  V.  Ward,  2  Black,  485.  The  facts  in  that  case  were 
these:  A  bill  was  filed  in  a  District  Court  of  the  United  States 
for  the  District  of  Iowa  to  abate  a  nuisance  alleged  to  have 
been  occasioned  by  a  bridge  across  the  Mississippi  river 
dividing  the  States  of  Illinois  and  Iowa.  Under  the  assump- 
tion that  the  nuisance  was  occasioned  by  the  operation  of  the 
bridge  on  the  Illinois  side,  the  court,  after  pointing  out  that 
the  United  States  Circuit  Court  for  the  District  of  Iowa  exer- 
cised the  same  jurisdiction  that  a  State  court  of  Iowa  could 
exercise  and  no  more,  said  (p.  494) : 

"The  District  Court  had  no  power  over  the  local  object 
inflicting  the  injury;  nor  any  jurisdiction  to  inquire  of  the 
facts,  whether  damage  had  been  sustained,  or  how  much. 
These  facts  are  beyond  the  court's  jurisdiction  and  powers 
of  inquiry,  and  outside  of  the  case." 

Nor  has  the  conclusive  force  of  the  view  which  we  have  stated 
been  met  by  the  suggestion  that  the  res  was  indivisible,  and 
therefore  was  wholly  in  Connecticut  and  wholly  in  New  York, 
for  this  amounts  but  to  saying  that  the  same  thing  can  be  at 
one  and  the  same  time  in  different  places.  Further,  the  rea- 
soning above  expressed  disposes  of  the  contention  that,  as 
the  suit  in  Connecticut  involved  the  status  of  the  husband, 
therefore  the  courts  of  that  State  had  the  power  to  deter- 
mine the  status  of  the  non-resident  wife  by  a  decree  which 
had  obligatory  force  outside  of  the  State  of  Connecticut. 
Here,  again,  the  argument  comes  to  this,  that,  because  the 
State  of  Connecticut  had  jurisdiction  to  fix  the  status  of  one 
domiciled  within  its  borders,  that  State  also  had  the  authority 
to  oust  the  State  of  New  York  of  the  power  to  fix  the  status 
of  a  person  who  was  undeniably  subject  to  the  jurisdiction 
of  that  State. 
[476] 


HADDOCK   V.    HADDOCK 

III.  It  is  urged  that  whilst  marriage  is  in  one  aspect  a  con- 
tract, it  is  nevertheless  a  contract  in  which  society  is  deeply 
interested  and,  therefore,  government  must  have  the  power 
to  determine  whether  a  marriage  exists  or  to  dissolve  it,  and 
hence  the  Connecticut  court  had  jurisdiction  of  the  relation 
and  the  right  to  dissolve  it,  not  only  as  to  its  own  citizen  but 
as  to  a  citizen  of  New  York  who  was  not  subject  to  the  juris- 
diction of  the  State  of  Connecticut.  The  proposition  involves 
in  another  form  of  statement  the  non  sequitur  which  we  have 
previously  pointed  out;  that  is,  that,  because  government 
possesses  power  over  marriage,  therefore  the  existence  of  that 
power  must  be  rendered  unavailing. 

Nor  is  the  contention  aided  by  the  proposition  that  because 
it  is  impossible  to  conceive  of  the  dissolution  of  the  marriage 
as  to  one  of  the  parties  in  one  jurisdiction  without  at  the  same 
time  saying  that  the  marriage  is  dissolved  as  to  both  in  every 
other  jurisdiction,  therefore  the  Connecticut  decree  should 
have  obligatory  effect  in  New  York  as  to  the  citizen  of  that 
State.  For,  again,  by  a  change  of  form  of  statement,  the 
same  contention  which  we  have  disposed  of  is  reiterated.  Be- 
sides, the  proposition  presupposes  that,  because  in  the  exer- 
cise of  its  power  over  its  own  citizens,  a  State  may  determine 
to  dissolve  the  marriage  tie  by  a  decree  which  is  efficacious 
within  its  borders,  therefore  such  decree  is  in  all  cases  bind- 
ing in  every  other  jurisdiction.  As  we  have  pointed  out  at 
the  outset,  it  does  not  follow  that  a  State  may  not  exert  its 
power  as  to  one  within  its  jurisdiction  simply  because  such 
exercise  of  authority  may  not  be  extended  beyond  its  borders 
into  the  jurisdiction  and  authority  of  another  State.  The 
distinction  was  clearly  pointed  out  in  Blackinton  v.  Blackinton, 
141  Massachusetts,  432.  In  that  case  the  parties  were  married 
and  lived  in  Massachusetts.  The  husband  abandoned  the  wife 
without  cause  and  became  domiciled  in  New  York.  The  "wife 
remained  at  the  matrimonial  domicil  in  Massachusetts  and  in- 
stituted a  proceeding  to  prohibit  her  husband  from  imposing 

[477] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE 

any  restraint  upon  her  personal  liberty  and  for  separate  main- 
tenance. Service  was  made  upon  the  husband  in  New  York. 
The  court,  recognizing  fully  that  under  the  circumstances  dis- 
closed the  domicil  of  the  husband  was  not  the  domicil  of  the 
wife,  concluded  that,  under  the  statutes  of  Massachusetts,  it 
had  authority  to  grant  the  relief  prayed,  and  was  then  brought 
to  determine  whether  the  decree  ought  to  be  made,  in  view 
of  the  fact  that  such  decree  might  not  have  extraterritorial 
force.  But  this  circumstance  was  held  not  to  be  controlling 
and  the  decree  was  awarded.  The  same  doctrine  was  clearly 
expounded  by  the  Privy  Council,  in  an  opinion  delivered  by 
Lord  Watson,  in  the  divorce  case  of  Le  Mesurier  v.  Le  Meswier 
(1895),  A.  C.  517,  where  it  was  said  (p.  527)  t 

"When  the  jurisdiction  of  the  court  is  exercised  according 
to  the  rules  of  international  law,  as  in  the  case  where  the  parties 
have  their  domicil  within  its  forum,  its  decree  dissolving  their 
marriage  ought  to  be  respected  by  the  tribunals  of  every 
civilized  country,  ,  .  .  On  the  other  hand,  a  decree  of 
divorce  a  vinculo,  pronounced  by  a  court  whose  jurisdiction 
is  solely  derived  from  some  rule  of  municipal  law  peculiar  to 
its  forum,  cannot,  when  it  trenches  upon  the  interests  of  any 
other  country  to  whose  tribunals  the  spouses  were  amenable, 
claim  extraterritorial  authority." 

IV.  The  contention  that  if  the  power  of  one  State  to  decree 
a  dissolution  of  a  marriage  which  would  be  compulsory  upon 
the  other  States  be  limited  to  cases  where  both  parties  are 
subject  to  the  jurisdiction,  the  right  to  obtain  a  divorce  could 
be  so  hampered  and  restricted  as  to  be  in  effect  impossible 
of  exercise,  is  but  to  insist  that  in  order  to  favor  the  dissolu- 
tion of  marriage  and  to  cause  its  permanency  to  depend 
upon  the  mere  caprice  or  wrong  of  the  parties,  there  should 
not  be  applied  to  the  right  to  obtain  a  divorce  those  funda- 
mental principles  which  safeguard  the  exercise  of  the  simplest 
rights.  In  other  words,  the  argument  but  reproduces  the 
fallacy  already  exposed,  which  is,  that  one  State  must  be  en- 
[478] 


HADDOCK   V.   HADDOCK 


dowed  wdth  the  attribute  of  destroying  the  authority  of  all 
the  others  concerning  the  dissolution  of  marriage  in  order  to 
render  such  dissolution  easy  of  procurement.  But  even  if  the 
true  and  controlling  principles  be  for  a  moment  put  aside  and 
mere  considerations  of  inconvenience  be  looked  at,  it  would 
follow  that  the  preponderance  of  inconvenience  would  be 
against  the  contention  that  a  State  shoiild  have  the  power  to 
exert  its  authority  concerning  the  dissolution  of  marriage  as 
to  those  not  amenable  to  its  jurisdiction.  By  the  apphcation 
of  that  rule  each  State  is  given  the  power  of  overshadowing 
the  authority  of  all  the  other  States,  thus  causing  the  marriage 
tie  to  be  less  protected  than  any  other  civil  obhgation,  and 
this  to  be  accomplished  by  destroying  individual  rights  with- 
out a  hearing  and  by  tribunals  having  no  jurisdiction.  Further, 
the  admission  that  jurisdiction  in  the  courts  of  one  State  over 
one  party  alone  was  the  test  of  the  right  to  dissolve  the  mar- 
riage tie  as  to  the  other  party  although  domiciled  in  another 
State,  would  at  once  render  such  test  impossible  of  general 
application.  In  other  words,  the  test,  if  admitted,  would 
destroy  itself.  This  follows,  since  if  that  test  were  the  rule, 
each  party  to  the  marriage  in  one  State  would  have  a  right  to 
acquire  a  domicil  in  a  different  State  and  there  institute  pro- 
ceedings for  divorce.  It  would  hence  necessarily  arise  that 
domicil  would  be  no  longer  the  determinative  criterion,  but 
the  mere  race  of  diligence  between  the  parties  in  seeking 
different  forums  in  other  States  or  the  celerity  by  which  in 
such  States  judgments  of  divorce  might  be  procured  would 
have  to  be  considered  in  order  to  decide  which  fonmi  was  con- 
trolUng. 

On  the  other  hand,  the  denial  of  the  power  to  enforce  in 
another  State  a  decree  of  divorce  rendered  against  a  person 
who  was  not  subject  to  the  jurisdiction  of  the  State  in  which 
the  decree  was  rendered  obviates  all  the  contradictions  and 
inconveniences  which  are  above  indicated.  It  leaves  uncur- 
tailed  the  legitimate  power  of  all  the  States  over  a  subject 

[479] 


THE    LAW   OF  MARRIAGE   AND    DIVORCE 

peculiarly  within  their  authority,  and  thus  not  only  enables' 
them  to  maintain  their  public  policy  but  also  to  protect  the 
individual  rights  of  their  citizens.  It  does  not  deprive  a  State 
of  the  power  to  render  a  decree  of  divorce  susceptible  of  being 
enforced  within  its  borders  as  to  the  person  within  the  juris- 
diction and  does  not  debar  other  States  from  giving  such  effect 
to  a  judgment  of  that  character  as  they  may  elect  to  do  under 
mere  principles  of  state  comity.  It  causes  the  full  faith  and 
credit  clause  of  the  Constitution  to  operate  upon  decrees  of 
divorce  in  the  respective  States  just  as  that  clause  operates 
upon  other  rights,  that  is,  it  compels  all  the  States  to  recog- 
nize and  enforce  a  judgment  of  divorce  rendered  in  other  States 
where  both  parties  were  subject  to  the  jurisdiction  of  the 
State  in  which  the  decree  was  rendered,  and  it  enables  the 
States  rendering  such  decrees  to  take  into  view  for  the  purpose 
of  the  exercise  of  their  authority  the  existence  of  a  matrimonial 
domicil  from  which  the  presence  of  a  party  not  physically 
present  within  the  borders  of  a  State  may  be  constructively 
found  to  exist. 

Having  thus  disposed  of  the  reasoning  advanced  to 
sustain  the  assertion  that  the  courts  of  the  State  of  New 
York  were  bound  by  the  full  faith  and  credit  clause  to 
give  full  effect  to  the  Connecticut  decree,  we  are  brought 
to  consider  the  authorities  relied  upon  to  support  that 
proposition. 

Whilst  the  continental  and  English  authorities  are  not 
alluded  to  in  the  argument,  it  may  be  well,  in  the  most  sum- 
mary way,  to  refer  to  them  as  a  means  of  illustrating  the 
question  for  consideration.  The  extent  of  the  power  which 
independent  sovereignties  exercised  over  the  dissolution  of  the 
marriage  tie,  as  to  their  own  citizens,  gave  rise,  in  the  nature 
of  things,  to  controversies  concerning  the  extraterritorial  effect 
to  be  given  to  a  dissolution  of  such  tie  when  made  between 
citizens  of  one  country  by  judicial  tribunals  of  another  country 
in  which  such  citizens  had  become  domiciled.  We  do  not 
[480] 


HADDOCK    V.    HADDOCK 

deem  it  essential,  however,  to  consider  the  conflicting  theories 
and  divergent  rules  of  public  policy  which  were  thus  engen- 
dered. We  are  relieved  of  the  necessity  of  entering  upon  such 
an  inquiry,  since  it  cannot  be  doubted  that  neither  the  practice 
nor  the  theories  controlling  in  the  countries  on  the  continent 
lend  the  slightest  sanction  to  the  contention  that  a  govern- 
ment, simply  because  one  of  the  parties  to  a  marriage  was 
domiciled  within  its  borders,  where  no  matrimonial  domicil 
ever  existed,  had  power  to  render  a  decree  dissolving  a  mar- 
riage which  on  principles  of  international  law  was  entitled  to 
obligatory  extraterritorial  effect  as  to  the  other  party  to  the 
marriage,  a  citizen  of  another  country.  Wharton,  Conf.  Laws, 
3d  ed.,  V.  1,  p.  441,  sec.  209  and  notes. 

It  cannot  be  doubted,  also,  that  the  courts  of  England  de- 
cline to  treat  a  foreign  decree  of  divorce  as  having  obligatory 
extraterritorial  force  when  both  parties  to  the  marriage  were 
not  subject  to  the  jurisdiction  of  the  court  which  rendered  the 
decree.  Shaw  v.  Gould,  L.  R.  3  H.  L.  55;  Harvey  v.  Farnie, 
8  App.  Cas.  43.  And,  although  it  has  been  suggested  in  opin- 
ions of  English  judges  treating  of  divorce  questions  that 
exceptional  cases  might  arise  which  perhaps  would  justify 
a  relaxation  of  the  rigor  of  the  presumption  that  the  domicil 
of  the  husband  was  the  domicil  of  the  wife,  per  Lords  Eldon 
and  Redesdale,  in  Tovey  v.  Lindsay,  1  Dow,  133,  140;  per 
Lord  Westbury,  in  Pitt  v.  Pitt,  4  Macq.  640;  per  Brett,  L.  J., 
in  Niboyet  v.  Niboyet,  4  P.  D.  14;  Briggs  v.  Briggs,  5  P.  D. 
165;  and  per  James  and  Cotton,  L.  JJ.,  in  Harvey  v.  Far- 
nie, 6  P.  D.  47,  49,  the  courts  of  England,  in  cases  where 
the  jurisdiction  was  dependent  upon  domicil,  have  enforced 
the  presumption  and  treated  the  wife  as  being  within  the  juris- 
diction where  the  husband  was  legally  domicled.  But  this 
conception  was  not  a  departure  from  the  principle  uniformly 
maintained,  that,  internationally  considered,  jurisdiction  over 
both  parties  to  a  marriage  was  essential  to  the  exercise  of 
power  to  decree  a  divorce,  but  was  simply  a  means  of  deter- 
31  [481] 


THE    LAW   OF  MARRIAGE   AND    DIVORCE 

mining  by  a  legal  presumption  whether  both  parties  were 
within  the  jurisdiction.  Of  course  the  rigor  of  the  Enghsh 
rule  as  to  the  domicil  of  the  husband  being  the  domicil  of  the 
wife  is  not  controlling  in  this  court,  in  view  of  the  decisions  to 
which  we  have  previously  referred,  recognizing  the  right  of  the 
wife,  for  the  fault  of  the  husband,  to  acquire  a  separate  domi- 
cil. Barber  v.  Barber,  21  How.  582;  Cheever  v.  Wilson,  9 
Wall.  108;  Atherton  v.  Atherton,  181  U.  S.  155. 

And  even  in  Scotland,  where  residence,  as  distinguished  from 
domicil,  was  deemed  to  authorize  the  exercise  of  jurisdiction 
to  grant  divorces,  it  was  invariably  recognized  that  the  presence 
within  the  jurisdiction  of  both  parties  to  the  marriage  was 
essential  to  authorize  a  decree  in  favor  of  the  complainant. 
Wharton,  Conf.  Laws,  sec.  215,  v.  1,  p.  447;  per  Lord  West- 
bury,  in  Shaw  v.  Gould,  L.  R.  3  H.  L.  88. 

As  respects  the  decisions  of  this  court.  We  at  once  treat 
as  inapposite,  and  therefore  unnecessary  to  be  here  specially 
reviewed,  those  holding,  a,  that  where  the  domicil  of  a  plain- 
tiff in  a  divorce  cause  is  in  the  State  where  the  suit  was  brought, 
and  the  defendant  appears  and  defends,  as  both  parties  are 
before  the  court,  there  is  power  to  render  a  decree  of  divorce 
which  will  be  entitled  in  other  States  to  recognition  under  the 
full  faith  and  credit  clause  {Cheever  v.  Wilson,  supra) ;  b,  that, 
as  distinguished  from  legal  domicil,  mere  residence  within  a 
particular  State  of  the  plaintiff  in  a  divorce  cause  brought  in 
a  court  of  such  State  is  not  sufficient  to  confer  jurisdiction  upon 
such  court  to  dissolve  the  marriage  relation  existing  between 
the  plaintiff  and  a  non-resident  defendant.  Andrews  v.  An- 
drews, 188  U.  S.  14;  Streitwolf  v.  Streitwolf,  181  U.  S.  179; 
Bell  V.  Bell,  181  U.  S.  175.  This  brings  us  to  again  consider 
a  case  heretofore  referred  to,  principally  relied  upon  as  sus- 
taining the  contention  that  the  domicil  of  one  party  alone  is 
sufficient  to  confer  jurisdiction  upon  a  judicial  tribunal  to 
render  a  decree  of  divorce  having  extraterritorial  effect,  viz., 
Atherton  v.  Atherton,  181  U.  S.  155.  The  decision  in  that  case, 
[  482  ] 


HADDOCK   V.   HADDOCK 

however,  as  we  have  previously  said,  was  expressly  placed  upon 
the  ground  of  matrimonial  domicil.  This  is  apparent  from 
the  following  passage,  which  we  excerpt  from  the  opinion,  at 
page  171 : 

"This  case  does  not  involve  the  validity  of  a  divorce  granted, 
on  constructive  service,  by  the  court  of  a  State  in  which  only 
one  of  the  parties  ever  had  a  domicil;  nor  the  question  to  what 
extent  the  good  faith  of  the  domicil  may  be  afterwards  in- 
quired into.  In  this  case  the  divorce  in  Kentucky  was  by 
the  court  of  the  State  which  had  always  been  the  undoubted 
domicil  of  the  husband,  and  which  was  the  only  matrimonial 
domicil  of  the  husband  and  wife.  The  single  question  to 
be  decided  is  the  validity  of  that  divorce,  granted  after  such 
notice  had  been  given  as  was  required  by  the  statutes  of 
Kentucky." 

The  contention,  therefore,  that  the  reasoning  of  the  opinion 
demonstrates  that  the  domicil  of  one  of  the  parties  alone  was 
contemplated  as  being  sufficient  to  found  jurisdiction,  but  in- 
sists that  the  case  decided  a  proposition  which  was  excluded 
in  unmistakable  language.  But,  moreover,  it  is  clear,  when 
the  facts  which  were  involved  in  the  Atherton  case  are  taken 
into  view,  that  the  case  could  not  have  been  decided  merely 
upon  the  ground  of  the  domicil  of  one  of  the  parties,  because 
that  consideration  alone  would  have  afforded  no  solution  of 
the  problem  which  the  case  presented.  The  salient  facts  were 
these:  The  husband  lived  in  Kentucky,  married  a  citizen  of 
New  York,  and  the  married  couple  took  up  their  domicil  at 
the  home  of  the  husband  in  Kentucky,  where  they  continued 
to  reside  and  where  children  were  born  to  them.  The  wife 
left  the  matrimonial  domicil  and  went  to  New  York.  The 
husband  sued  her  in  Kentucky  for  a  divorce.  Before  the 
Kentucky  suit  merged  into  a  decree  the  wife,  ha\ing  a  resi- 
dence in  New  York  sufficient,  under  ordinary  circumstances, 
to  constitute  a  domicil  in  that  State,  sued  the  husband  in  the 
courts  of  New  York  for  a  limited  divorce.    Thus  the  two  suits, 

[483] 


THE    LAW    OF   MARRIAGE   AND   DIVORCE 

one  by  the  husband  against  the  wife  and  the  other  by  the  wife 
against  the  husband,  were  pending  in  the  respective  States  at 
the  same  time.  The  husband  obtained  a  decree  in  the  Ken- 
tucky suit  before  the  suit  of  the  wife  had  been  determined  and 
pleaded  such  decree  in  the  suit  brought  by  the  wife  in  New 
York.  The  New  York  court,  however,  refused  to  recognize 
the  Kentucky  decree  and  the  case  came  here,  and  this  court 
decided  that  the  courts  of  New  York  were  bound  to  give  effect 
to  the  Kentucky  decree  by  virtue  of  the  full  faith  and  credit 
clause.  Under  these  conditions  it  is  clear  that  the  case  could 
not  have  been  disposed  of  on  the  mere  ground  of  the  individual 
domicil  of  the  parties,  since  upon  that  hypothesis,  even  if  the 
efficacy  of  the  individual  domicil  had  been  admitted,  no  solu- 
tion would  have  been  thereby  afforded  of  the  problem  which 
would  have  arisen  for  decision,  that  problem  being  which  of 
the  two  courts  wherein  the  conflicting  proceedings  were  pend- 
ing had  the  paramount  right  to  enter  a  binding  decree.  Hav- 
ing disposed  of  the  case  upon  the  principle  of  matrimonial 
domicil,  it  cannot  in  reason  be  conceived  that  the  court  in- 
tended to  express  an  opinion  upon  the  soundness  of  the  theory 
of  individual  and  separate  domicil  which,  isolatedly  consid- 
ered, was  inadequate  to  dispose  of,  and  was,  therefore,  irrele- 
vant to,  the  question  for  decision. 

It  is  contended  that  an  overwhelming  preponderance  of  the 
decisions  of  state  courts  enforce  the  doctrine  that  it  is  the 
duty  of  the  States,  by  virtue  of  the  full  faith  and  credit  clause, 
to  give  within  their  borders  the  full  effect  required  by  that 
clause  to  decrees  of  divorce  rendered  in  other  States,  where 
there  was  jurisdiction  alone  by  virtue  of  the  domicil  of  one  of 
the  parties.  Whilst  we  may  not  avoid  the  duty  of  interpreting 
for  ourselves  the  Constitution  of  the  United  States,  in  view 
of  the  persuasive  force  that  would  result  if  an  overwhelming 
line  of  state  decisions  held  the  asserted  doctrine,  we  come  to 
consider  that  subject.  To  examine  in  detail  the  many  deci- 
sions of  state  courts  of  last  resort,  most  of  which  are  referred 
[484] 


HADDOCK   V.   HADDOCK 

to  in  the  margin/  would  expand  this  opinion  to  undue  length. 
To  avoid  so  doing,  if  possible,  we  propose  to  more  particularly 
direct  our  attention  to  the  cases  in  state  courts  which  are 
specially  relied  on.  In  doing  so  we  shall  add  cases  in  several 
of  the  States  not  particularly  counted  on  in  the  argument. 
We  shall  do  this  for  the  purpose  of  evolving,  if  possible,  from 
the  state  cases  thus  to  be  referred  to,  some  classification  typical 
of  all  the  state  decisions,  hence  enabling  all  the  cases  to  which 
we  do  not  specially  refer  to  be  brought  within  the  appropriate 
class  to  which  they  pertain,  without  the  necessity  of  reviewing 
them  in  detail.  We  shall  not  confine  ourselves  to  the  particular 
state  decisions  relied  on,  but  shall  consider  such  decisions  in  the 
Hght  of  the  general  rule  obtaining  in  the  particular  State. 

The  cases  specially  relied  on  are  Thom'pson  v.  State,  28  Ala- 
bama, 12;  Harding  v.  Alden,  9  Maine,  140;  Ditson  v.  Ditson, 

1  Cases  relating  to  the  validity  and  extraterritorial  effect  of  a  decree  of 
divorce  rendered  upon  constructive  notice: 

Turner  v.  Turner,  44  Alabama,  437;  In  re  James  Estate,  99  California, 
374;  Knoiolton  v.  Knowlton,  155  Illinois.  158;  Dunham  v.  Dunham,  162 
Illinois,  589;  Field  v.  Field,  215  Illinois,  496;  Hood  v.  State,  56  Indiana, 
263,  270;  Hilbish  v.  Battle,  145  Indiana,  59;  Kline  v.  Kline,  57  Iowa,  386 
Van  Orsdal  v.  Van  Orsdal,  67  Iowa,  35;  Chapman  v.  Chapman,  48  Kansas 
636;  Rodgers  v.  Rodgers,  56  Kansas,  483;  Maguire  v.  Maguire,  7  Dana,  181 
Hawkins  v.  Ragsdale,  80  Kentucky,  353;  Edwards  v.  Green,  9  La.  Ann 
317;  Smith  v.  Smith,  43  La.  Ann.  1140;  Butler  v.  Washington,  45  La.  Ann 
279;  Harding  v.  Alden,  9  Maine,  140;  Stilphen  v.  Stilphen,  58  Maine,  508 
Stilphen  v.  Hondlette,  60  Maine,  447;  Garner  v.  Gamer,  56  Maryland,  127 
Lyon  V.  Lyon,  2  Gray,  367;  Wright  v.  Wright,  24  Michigan,  180;  Van  Inwagen 
V.  Van  Inwagen,  86  Michigan,  233;  Thurston  v.  Thurston,  58  Minnesota, 
279;  Goidd  v.  Crow,  57  Missouri,  200;  Anthony  v.  Rice,  110  Missouri,  233; 
Smith  V.  Smith,  19  Nebraska,  706;  Leith  v.  Leith,  39  N.  H.  20;  Doughty 
v.  Doughty,  28  N.  J.  Eq.  581;  Flower  v.  Floicer,  42  N.  J.  Eq.  152;  Felt  v. 
Felt,  59  N.  J.  Eq.  606;  Wallace  v.  Wallace,  62  N.  J.  Eq.  509;  Lynde  v. 
Lynde,  162  N.  Y.  405;  Winston  v.  Winston,  165  N.  Y.  553;  Irby  v.  Wilson, 
1  Dev.  &  Bat.  Eq.  (21  N.  Car.)  568;  Harris  v.  Harris,  115  N.  Car.  587; 
Bidwell  V.  Bidwell  (N.  Car.),  52  S.  E.  Rep.  58;  Cox  v.  Cox,  19  Ohio  St. 
502;  Doerr  v.  Forsythe,  50  Ohio  St.  726;  Colon  v.  Reed,  55  Pa.  St.  375; 
Reel  V.  Elder,  62  Pa.  St.  308;  Ditson  v.  Ditson,  4  R.  I.  87;  McCreery  v. 
Davis,  44  S.  Car.  195;  Thorns  v.  King,  95  Tennessee,  60;  Prosser  v.  Warner, 
47  Vermont,  667,  673:  Cook  v.  Cook,  56  Wisconsin,  195. 

[485] 


THE   LAW  OF  MARRIAGE   AND   DIVORCE 

4  R.  I.  87;  Burlen  v.  Shannon,  115  Massachusetts,  483;  and 
Felt  V.  Felt,  59  N.  J.  Eq.  606,  to  which  we  shall  add  for  the 
purposes  above  stated  cases  on  the  same  subject  decided  in 
New  York,  Ohio,  Wisconsin,  Indiana  and  Missouri. 

New  York. — It  is  not  questioned  that  the  courts  of  New 
York  are  vested  by  statute  with  authority  to  render  decrees 
of  divorce  where  the  plaintiff  is  domiciled  within  the  State, 
which  shall  be  operative  in  that  State,  even  although  the  de- 
fendant is  a  non-resident  and  is  proceeded  against  by  con- 
structive service. 

Borden  v.  Fitch,  15  Johns.  121,  and  Bradshaw  v.  Heath,  13 
Wend.  407,  were  decided,  respectively,  in  the  years  1818  and 
1835.  These  cases,  as  declared  by  the  Court  of  Appeals  of 
New  York  in  People  v.  Baker,  76  N.  Y.  78,  82,  upheld  the  prin- 
ciple that  a  court  of  another  State  could  not  dissolve  the 
matrimonial  relation  of  a  citizen  of  New  York,  domiciled  in 
New  York,  unless  he  was  actually  served  with  notice  within 
the  other  State  or  voluntarily  appeared  in  the  cause.  The 
doctrine  that  an  action  of  divorce  is  one  inter  partes  was  thus 
clearly  reiterated  by  Andrews,  J.,  in  Jones  v.  Jones,  108  N.  Y. 
415,  424: 

"The  contract  of  marriage  cannot  be  annulled  by  judicial 
sanction  any  more  than  any  other  contract  inter  partes,  with- 
out jurisdiction  of  the  person  of  the  defendant.  The  marriage 
relation  is  not  a  res  within  the  State  of  the  party  invoking  the 
jurisdiction  of  a  court  to  dissolve  it,  so  as  to  authorize  the 
court  to  bind  the  absent  party,  a  citizen  of  another  jurisdic- 
tion, by  substituted  service  or  actual  notice  of  the  proceeding 
given  without  the  jurisdiction  of  the  court  where  the  proceed- 
ing is  pending." 

That  the  principle  referred  to  is  still  enforced  by  the  New 
York  court  is  shown  by  recent  cases,  viz.,  Lynde  v.  Lynde,  162 
N.  Y.  405;  Winston  v.  Winston,  165  N.  Y.  553,  and  the  case 
at  bar.  And  it  is  indubitable  that  under  this  doctrine  the 
courts  of  New  York  have  invariably  refused,  as  they  have 
[486] 


HADDOCK  V.   HADDOCK 

done  in  the  case  at  bar,  to  treat  a  divorce  rendered  in  another 
State,  under  the  circumstances  stated,  as  entitled  to  be  en- 
forced in  New  York  by  virtue  of  the  full  faith  and  credit  clause 
of  the  Constitution  of  the  United  States;  and,  indeed,  have 
refused  generally  to  give  effect  to  such  decrees  even  by  state 
comity. 

Massachusetts.— 5ar6er  v.  Root,  10  Massachusetts,  260; 
Hanover  v.  Turner,  14  Massachusetts,  227,  and  Harteau  v. 
Harteau,  14  Pick.  181,  were  decided,  respectively,  in  1813, 
1817  and  1833.  In  1835  the  legislature  of  Massachusetts  in- 
corporated into  the  statutes  of  that  State,  following  a  section 
forbidding  the  recognition  of  divorces  obtained  in  another 
jurisdiction  in  fraud  of  the  laws  of  Massachusetts,  a  provision 
reading  as  follows:  "In  all  other  cases,  a  divorce  decreed  in 
another  State  or  country,  according  to  the  law  of  the  place,  by 
a  court  having  jurisdiction  of  the  cause  and  of  both  of  the 
parties,  shall  be  valid  and  effectual  in  this  State."  And  it 
may  be  observed  that  this  section,  when  submitted  to  the 
legislature  by  the  commissioners  for  revising  the  Massachu- 
setts statutes,  was  accompanied  by  the  following  comment 
(Rept.  Comrs.,  pt.  1,  p.  123):  "This  is  founded  on  the  rule 
established  by  the  comity  of  all  civihzed  nations;  and  is 
proposed  merely  that  no  doubt  should  arise  on  a  question  so 
interesting  and  important  as  this  may  sometimes  be." 

In  Lyon  v.  Lyon  (1854),  2  Gray,  367,  the  question  was  as 
to  the  validity  in  Massachusetts  of  a  divorce  decreed  in  Rhode 
Island  in  favor  of  one  party  to  a  marriage  against  the  other 
who  was  domiciled  in  Massachusetts.  The  court  refused  to 
give  extraterritorial  effect  to  the  Rhode  Island  decree.  In 
the  opinion  by  Chief  Justice  Shaw  it  was  declared  that  the 
three  cases  which  we  have  previously  referred  to  sustained  the 
doctrine,  based  upon  general  principles  of  law,  that  a  decree 
of  divorce  rendered  in  another  State  without  jurisdiction  of 
both  of  the  parties  possessed  no  extraterritorial  force. 

In  Hood  V.  Hood  (1865),  11  Allen,  196,  the  controversy  v/as 

[487] 


THE    LAW   OF   MARRIAGE   AND    DIVORCE 

this:  The  parties  were  married  in  Massachusetts  and,  after  a 
residence  in  that  State,  moved  together  to  Illinois.  The  wife 
left  the  domicil  of  the  husband  in  Illinois  and  returned  to 
Massachusetts,  Thereafter,  in  Illinois,  the  husband  sued  the 
wife  for  a  divorce  on  the  ground  of  her  desertion,  obtained  a 
decree,  and  married  again.  The  case  decided  in  Massachu- 
setts was  a  suit  brought  in  that  State  by  the  former  wife  against 
the  former  husband  for  divorce  on  the  ground  of  adultery 
alleged  to  have  been  committed  by  him  with  the  person  whom 
he  had  married  after  the  decree  of  divorce  in  Illinois  had  been 
rendered.  The  Illinois  decree  was  pleaded  in  bar.  The  ques- 
tion whether  the  Illinois  decree  should  be  given  extraterritorial 
effect  in  Massachusetts  depended,  under  the  rule  announced 
in  the  previous  cases,  upon  whether  both  the  husband  and 
wife  were  parties  to  the  Illinois  decree.  For  the  purpose  of 
the  determination  of  this  jurisdictional  question  it  was  held 
that  it  was  necessary  to  ascertain  whether  the  wife  was  justified, 
by  the  fault  of  the  husband,  in  leaving  him  in  Illinois  and 
going  back  to  Massachusetts.  It  was  decided  that  if  she  was 
justified  in  leaving  the  husband,  her  legal  domicil  was  in 
Massachusetts,  and  she  was  not  a  party  to  the  Illinois  decree, 
and  that  if  she  was  not  justified  in  living  separate  from  the 
husband,  the  ordinary  rule  being  that  the  domicil  of  the  hus- 
band was  the  domicil  of  the  wife,  she  was  domiciled  in  Illinois, 
and  must  be  considered  as  subject  to  the  jurisdiction  of  the 
Illinois  court.  Applying  this  legal  principle  to  the  facts  in 
the  case  before  it,  the  court  held  that  as  there  was  no  evidence 
showing  that  the  wife  had  justifiable  cause  for  leaving  her 
husband,  the  legal  presumption  that  the  domicil  of  the  hus- 
band was  the  domicil  of  the  wife  prevailed,  and  that  the  Illinois 
decree  was  entitled  to  extraterritorial  effect  in  Massachusetts, 
and  bound  the  wife,  because  rendered  by  a  court  having  juris- 
diction over  both  parties. 

In  Shaw  v.  Shaw  (1867),  98  Massachusetts,  158,  the  facts 
were  these:  The  parties  were  married  in  Massachusetts,  lived 
[488] 


HADDOCK   V.   HADDOCK 

there  and  left  together  for  the  purpose  of  settling  in  Colorado. 
On  the  journey,  at  Philadelphia,  the  wife  was  forced  by  the 
extreme  cruelty  of  the  husband  to  leave  him.     She  returned 
to  Massachusetts,  while  he  went  on  to  Colorado.     Subsequently 
the  wife  sued  in  Massachusetts  for  a  divorce  from  bed  and 
board.    The  husband  was  brought  in  by  substituted  service 
and  defaulted.     The  court,  in  the  most  expUcit  terms,  recog- 
nized that  a  decree  of  divorce  to  have  extraterritorial  effect 
must  be   rendered   wdth   jurisdiction  over  both   parties.     It 
said  (p.  159):  "For  the  purposes  of  divorce  the  general  rule  of 
jurisprudence  is  that  a  divorce  granted  in  the  place  of  the 
domicil  of  both  parties,  and  there  valid,  is  good  everywhere." 
The  court  came  then  to  consider  whether  it  could  render  a 
decree  in  Massachusetts  in  favor  of  the  wife.    This  depended 
upon  a  statute  of  Massachusetts,  which  authorized  the  grant- 
ing of  a  divorce  where  the  cause  for  divorce  occurred  while  the 
parties  had  lived  together  as  husband  and  wife  in  Massachu- 
setts, and  where  one  of  them  lived  in  that  State  when  the  cause 
for  divorce  occurred.     It  was  held  that  as  at  the  time  of  the 
commission  of  the  cruelty  in  PhiladeljAia  charged  against  the 
husband  the  domicil  of  the  parties  in  ^Massachusetts  had  not 
been  lost,  and  as  by  that  cruelty  the  wife  was  justified  in  re- 
turning to   Massachusetts,  and  the  subsequent  acquisition  of 
a  new  domicil  by  the  husband  in  Colorado  did  not  make  such 
domicil  that  of  the  wife,  there  was  jurisdiction,  and  the  di- 
vorce was  granted. 

Hood  V.  Hood  (1872),  110  Massachusetts,  463,  was  an  at- 
tempt again  to  assail  the  validity  of  the  Illinois  decree  of 
divorce  which  had  been  adjudged  valid  in  11  Allen,  196,  be- 
cause it  was  found  that  both  the  husband  and  wife  had  been 
parties  to  the  decree.  The  Massachusetts  decree  so  holding 
was  therefore  held  to  be  res  judicata  as  to  all  persons  and  to 
foreclose  further  inquiry  into  the  validity  of  the  Illinois  decree 
of  divorce. 

In  Burlen  v.  Shannon  (1874),  115  Massachusetts,  438,  the 

[489] 


THE   LAW  OF   MARRIAGE   AND   DIVORCE 

facts  leading  up  to  the  controversy  and  those  involved  therein 
were  as  follows :  Shannon  and  his  wife  lived  together  in  Massa- 
chusetts, where  she  left  him.  Without  stopping  to  refer  to 
prior  legal  controversies  which  arose  between  Shannon  and 
his  wife  and  between  Shannon  and  Mrs.  Burlen,  which  are 
irrelevant  to  be  considered,  it  suffices  to  say  that  Mrs.  Burlen 
sued  Shannon  in  1850  to  hold  him  liable  for  necessary  supplies 
furnished  to  the  wife.  Shannon  resisted  on  the  ground  that 
the  wife  had  been  living  apart  from  him  without  his  fault  or 
consent,  and  this  defense  was  maintained.  (3  Gray,  387.) 
Shannon  w^ent  to  Indiana  in  1855  and  took  up  his  domicil  in 
that  State,  where,  in  1856,  he  obtained  a  decree  of  divorce 
upon  constructive  service.  Subsequently,  in  Massachusetts, 
Mrs.  Burlen  again  sued  Shannon  for  necessaries  furnished  to 
the  wife  between  February  22,  1860,  and  February  7,  1866. 
He  pleaded  the  Indiana  divorce,  and  the  validity  of  the  di- 
vorce was  assailed  by  Mrs.  Burlen  on  the  ground  that  the  wife 
had  not  been  a  party  to  the  divorce  cause,  and  therefore  the 
Indiana  decree  had  not  extraterritorial  effect  in  Massachu- 
setts. The  court,  in  effect,  after  reiterating  the  previous  rul- 
ings and  referring  to  the  statute  concerning  the  necessity  for 
the  presence  of  both  parties  within  the  jurisdiction  where  a 
decree  for  divorce  of  another  State  was  sought  to  be  given 
effect  in  Massachusetts,  also  reiterated  the  previous  ruling 
that  the  wife  might  acquire  a  separate  domicil  from  the  hus- 
band if  she  lived  separate  from  him  for  justifiable  cause.  The 
court  was  brought,  therefore,  to  consider  whether  Mr.  and 
Mrs.  Shannon  were  both  parties  to  the  Indiana  decree  on  the 
ground  that  the  domicil  of  the  husband  was  the  domicil  of  the 
wife.  The  solution  of  this  question  depended,  as  it  had  de- 
pended in  Hood  v.  Hood,  11  Allen,  196,  upon  whether  the  wife 
was  absent  from  the  husband  because  of  his  fault.  On  this 
subject  it  was  decided  that  the  previous  judgment  in  favor 
of  Shannon  and  against  Mrs.  Burlen  in  the  prior  action  between 
the  parties  had  conclusively  determined  between  them  that 
[  490  ] 


HADDOCK   V.   HADDOCK 

Mrs.  Shannon  was  absent  from  her  husband  without  his  fault 
or  consent,  and,  therefore,  under  the  legal  presumption  that 
the  domicil  of  the  husband  was  the  domicil  of  the  wife,  both 
the  husband  and  wife  were  parties  to  the  Indiana  decree  and 
it  was  not  subject  to  attack  in  Massachusetts.  To  cite,  as 
has  sometimes  been  done,  the  language  of  the  opinion  of  the 
court  referring  to  the  previous  judgment  in  the  earlier  action 
between  Mrs.  Burlen  and  Shannon  as  if  that  language  referred 
to  the  Indiana  decree  of  divorce,  leading  to  the  implication 
that  that  decree  was  held  to  be  conclusive,  even  if  only  one 
of  the  parties  was  domiciled  in  the  State  where  the  decree 
was  rendered,  not  only  is  a  plain  misconception,  but  is  equiva- 
lent to  asserting  that  the  Massachusetts  court  had  overruled 
its  previous  decisions  and  disregarded  the  spirit,  if  not  the 
letter,  of  the  state  statute  without  the  slightest  intimation 
to  that  effect. 

In  Cummmgton  v.  Belchertown,  149  Massachusetts,  223,  the 
facts  were  these:  The  parties  to  a  marriage,  celebrated  in 
Massachusetts,  lived  together  in  that  State  until  the  wife  was 
taken  to  a  Massachusetts  asylum  for  the  insane,  when  the 
husband  abandoned  her,  acquired  a  domicil  in  New  York, 
there  brought  suit  on  the  ground  of  fraud  for  the  annulment 
of  the  marriage,  and  obtained  a  decree.  The  wife  was  only 
constructively  served  with  process,  did  not  appear,  and  was 
not  represented.  The  Massachusetts  court  held,  upon  the 
authority  of  the  Blackington  case  (141  Massachusetts,  432), 
to  which  we  have  already  referred,  that  if  the  decree  was 
to  be  recognized  in  Massachusetts,  it  could  only  be  on 
grounds  of  comity.  And  in  concluding  its  opinion  the  court 
said : 

"Upon  the  ground,  then,  that  the  decree  of  the  New  York 
court  attempts  to  annul  a  marriage  in  Massachusetts  between 
Massachusetts  citizens,  and  thus  affect  the  legal  status  of  the 
woman,  who  has  remained  domiciled  in  Massachusetts,  and  has 
never  been  within  the  jurisdiction  of  the  New  York  court,  and 

[491] 


THE   LAW  OF  MARRIAGE   AND   DIVORCE 

deprive  her  of  the  rights  acquired  by  her  marriage,  and  espe- 
cially because  it  declares  the  marriage  void  for  a  reason  on 
account  of  which  by  the  Massachusetts  law  it  cannot  be  avoided, 
we  are  of  opinion  that  it  should  not  be  enforced  here,  and  that 
no  principle  of  interstate  comity  requires  that  we  should  give 
it  effect." 

True  it  is  the  court  reserved  the  question  as  to  what  effect 
might  be  given  to  a  divorce  if  granted  by  a  New  York  court 
under  circumstances  such  as  existed  in  that  case.  But,  as  a 
suit  for  a  declaration  of  nullity  and  one  for  divorce  are  both 
but  modes  for  determining  judicially  the  status  of  the  parties, 
it  must  in  reason  follow  if  jurisdiction  over  both  is  a  prerequisite 
in  the  one  class,  it  is  of  necessity  also  essential  in  the  other. 

Maine.— In  Harding  v.  Alden  (1832),  9  Maine,  140,  the  facts 
were  these :  While  living  together  in  Maine  a  husband  deserted 
his  wife.  He  went  to  North  Carolina,  where  he  pretended  to 
marry,  and  lived  there  with  another  woman.  In  the  mean- 
time the  wife  whom  he  had  deserted  took  up  her  residence  in 
Rhode  Island,  where  she  sued  for  a  divorce  on  the  ground  of 
the  adultery  committed  by  the  husband  in  North  Carolina. 
The  husband,  who  was  notified  in  North  Carolina,  did  not  ap- 
pear in  the  Rhode  Island  divorce  cause.  A  decree  of  divorce 
was  granted  and  the  wife  then  remarried.  The  first  husband, 
during  the  coverture,  owned  and  alienated  real  estate  in  Maine, 
and  a  statute  of  that  State  provided  that  where  a  divorce  was 
decreed  for  adultery  by  the  husband,  dower  might  be  assigned 
to  the  divorced  wife  in  the  same  manner  as  if  the  husband  were 
dead.  The  divorced  wife  brought  an  action  of  dower  in  a 
court  in  Maine.  The  Rhode  Island  decree  was  held  to  possess 
validity  in  Maine  and  the  statute  relating  to  dower  was  de- 
cided not  to  be  limited  to  divorces  decreed  within  the  State 
of  Maine.  Considering  the  opinion  in  its  entirety,  it  is  plain 
that  the  Rhode  Island  divorce  was  given  recognition  from 
considerations  of  right  and  justice  and  upon  the  ground  of 
state  comity.  Thus,  the  court  called  attention  to  the  fact 
[492] 


HADDOCK    V.    HADDOCK 

that  adultery  was  a  cause  for  divorce  in  both  States  and  that 
divorces  were  granted  in  Maine  against  non-residents;  and, 
it  was  observed,  that  "there  would  be  great  inconvenience  in 
holding"  that  divorces  ought  not  to  be  recognized  in  other 
States  when  granted  in  the  State  where  the  injured  party 
resided  against  one  who  had  established  liis  doniicil  in  another 
State  and  there  committed  adultery. 

True  it  is  in  the  course  of  the  opinion  reasoning  was  em- 
ployed tending  to  show  that  the  Rhode  Island  court  might  be 
considered  to  have  had  jurisdiction  in  the  complete  sense  and 
it  was  intimated  that  the  full  faith  and  credit  clause  might 
have  apphcation,  but  the  operation  of  the  Rhode  Island  decree 
in  Maine  was  by  the  decree  of  the  Maine  court  expressly  limited 
to  the  dissolution  of  the  marriage  (p.  151).  How  far  removed 
this  was  from  giving  to  the  Rhode  Island  decree  the  benefit  of 
the  full  faith  and  credit  clause  \vill,  we  think,  be  made  clear  by 
what  follows. 

Harding  v.  Alden  was  decided  at  the  July  term,  1832.  Less 
than  two  years  afterward,  on  March  5,  1834,  Public  Laws, 
1834,  c.  116,  p.  119,  the  statute  of  Maine  regulating  divorces 
was  supplemented  by  various  provisions,  one  such  being  the 
following:  "Sec.  2.  Be  it  further  enacted.  That  in  all  cases 
where  one  party  has  been  or  shall  be  divorced  from  the  bonds 
of  matrimony,  the  court  granting  the  same  may,  upon  apph- 
cation therefor,  grant  to  the  other  party  a  hive  divorce,  on  such 
terms  and  conditions  as  the  said  court  in  the  exercise  of  a 
sound  discretion  may  judge  reasonable."  This  provision  was 
carried  into  the  Revised  Statutes  of  1840,  c.  89,  sec.  2,  and 
although  repealed  in  1850,  in  a  general  revision  of  the  divorce 
laws,  it  was  held  that  the  legislature  did  not  intend  to  deprive 
the  courts  of  Maine  of  the  power  to  entertain  a  suit  for  divorce 
brought  by  a  person  from  whom  the  other  party  to  a  marriage 
had  already  been  divorced,  and  that  the  courts  of  Maine  still 
possessed  power  to  exercise  jurisdiction  over  such  suits.  Stil- 
phen  v.  Stilphen,  58  Elaine,  508.     In  the  cited  case,  although 

[493] 


THE    LAW   OF   MARRIAGE   AND   DIVORCE 

a  husband  had  already  obtained  an  absolute  divorce,  a  like 
divorce  was  granted  to  the  wife,  and  the  court  allowed  to  her 
certain  articles  of  personal  property  and  the  sum  of  $500.  In 
overruling  exceptions  to  the  decree  the  appellate  court  adopted 
the  theory  that  the  second  decree  in  no  wise  impugned  the 
first,  and  was  "important  only  as  enabling  the  court  to  make 
such  ancillary  decrees  concerning  the  property  as  justice  may 
seem  to  require  "  (p.  517).  In  the  course  of  the  opinion  the 
court  said  (p.  516) : 

"There  is  no  class  of  cases  in  which  the  court  is  so  liable  to 
be  imposed  upon,  and  a  decision  obtained  contrary  to  the 
truth,  as  ex  parte  divorce  suits.  The  notice  is  often  imperfect, 
so  that  the  confession  of  guilt  implied  in  the  default  is  de- 
ceptive. And  it  is  well  known  that  witnesses,  testifying  in 
the  presence  of  one  of  the  parties,  and  in  the  absence  of  the 
other,  will  so  alter  and  magnify  the  faults  of  the  absent,  and 
suppress  everything  that  makes  against  the  party  present, 
that  it  is  impossible  to  tell  where  the  truth  and  real  merits 
of  the  controversy  are.  When  both  parties  are  present,  each 
is  sure  to  put  the  other  in  the  wrong;  and,  a  fortiori  is  this 
true,  when  one  of  the  parties  is  permitted  to  testify  in  the 
absence  of  the  other,  as  is  now  the  case  in  divorce  suits.  We 
repeat,  therefore,  that  there  is  no  class  of  cases  in  which  the 
court  is  so  liable  to  be  imposed  upon;  and  it  seems  to  us  of 
the  utmost  importance  that  the  court  should  be  possessed  of 
the  power  in  some  form  to  revise  their  decisions  in  this  class 
of  cases;  otherwise,  the  grossest  injustice  is  liable  to  be  done." 

In  the  light  of  this  decision  it  cannot  be  assumed  that  the 
courts  of  Maine  would  give  to  a  citizen  of  that  State  against 
whom  a  divorce  had  been  obtained  in  a  foreign  jurisdiction, 
upon  constructive  service,  a  less  degree  of  relief  than  they 
afford  as  to  a  decree  rendered  in  Maine,  both  parties  being 
present  and  bound  by  the  decree. 

Rhode  Island.— Dtteon  v.  Ditson  (1856),  4  R.  I.  87,  was 
a  suit  for  divorce  on  the  grounds  of  desertion,  extreme  cruelty, 
[494] 


HADDOCK  V.    HADDOCK 

and  non-support,  brought  by  a  wife  domiciled  in  Rhode  Island 
against  the  husband,  who  had  never  resided  in  Rhode  Island, 
and  whose  whereabouts  was  unknown.  The  question  was 
whether  the  Rhode  Island  court  ought  to  exercise  jurisdiction. 
The  opinion  was  mainly  devoted  to  refuting  the  reasoning 
employed  by  Chief  Justice  Shaw  in  his  opinion  in  the  case  of 
Lyon  V.  Lyon,  2  Gray,  367,  in  which  case,  as  we  have  previously 
shown,  the  Massachusetts  court  refused  to  give  effect  to  a 
Rhode  Island  decree  of  divorce  where  both  parties  were  not 
within  the  jurisdiction.  The  Rhode  Island  court  (in  the 
Ditson  case)  in  effect  declared  that  it  would  not  exercise  juris- 
diction to  grant  a  divorce  if  it  considered  that  a  decree  ren- 
dered by  it  would  not  be  entitled  to  extraterritorial  effect  be- 
cause of  a  lack  of  actual  jurisdiction  over  the  defendant. 
The  court,  however,  proceeded  to  reason  that  a  suit  for  divorce 
was  in  effect  a  proceeding  in  rem,  and  that  jurisdiction  over 
one  of  the  parties  to  a  suit  for  the  dissolution  of  the  marriage 
tie  drew  to  the  court  jurisdiction  of  the  other  party,  and  thereby 
gave  full  and  complete  jurisdiction  over  the  status  of  both 
parties,  and  upon  that  hypothesis  decided  that  it  would  exer- 
cise jurisdiction,  and  that  its  decree  dissolving  the  marriage 
would  be  entitled  to  the  benefit  of  the  full  faith  and  credit 
clause  of  the  Constitution  and  have  binding  efficacy  in  every 
other  State. 

New  Jersey. — Whilst  the  courts  of  New  Jersey  have  exer- 
cised the  power  to  grant  a  divorce  from  a  non-resident  de- 
fendant, upon  constructive  service,  those  courts  have  from  the 
beginning  applied  to  similar  decrees  of  divorce  granted  in 
other  States,  when  sought  to  be  enforced  in  New  Jersey  against 
citizens  of  that  State,  a  rule  like  the  one  prevailing  in  New 
York,  that  is,  they  decline  to  enforce  them  even  upon  the 
principles  of  comity.  Doughty  v.  Doughty,  28  N.  J.  Eq.  581, 
586;  Flower  v.  Flower,  42  N.  J.  Eq.  152.  Recently,  however, 
it  has  been  decided,  Felt  v.  Felt,  59  N.  J.  Eq.  606,  that  where 
a  decree  of  divorce  was  rendered  in  another  State,  and  the  com- 

[495] 


THE   LAW   OF   MARRIAGE    AND    DIVORCE 

plainant  alone  was  subject  to  the  jurisdiction  of  the  court, 
but  it  was  shown  that  the  defendant  had  been  personally 
served  outside  of  the  jurisdiction  with  notice  of  the  pendency 
of  the  divorce  proceeding  and  was  afforded  reasonable  op- 
portunity to  make  defense  and  did  not  avail  of  the  opportunity, 
effect  would  be  given  to  such  decree  in  New  Jersey,  upon  prin- 
ciples of  comity,  provided  that  the  ground  upon  which  the 
decree  rested  was  one  which  the  public  policy  of  New  Jersey 
recognized  as  a  sufficient  cause  for  divorce.  In  Wallace  v. 
Wallace,  62  N.  J.  Eq.  509,  the  subject  is  quite  fully  reviewed. 

Ohio. — In  Cooper  v.  Cooper  (1836),  7  Ohio,  594,  without 
citation  of  authority,  a  divorce  granted  in  Indiana,  from  a 
resident  of  Ohio,  upon  constructive  service,  was  held  to  bar 
an  application  for  divorce  and  alimony  in  Ohio.  In  Mansfield 
V.  Mclntyre  (1840),  10  Ohio,  27,  despite  a  divorce  obtained 
in  Kentucky,  by  a  husband,  upon  constructive  service,  the 
divorced  wife  was  regarded  in  Ohio  as  the  \vidow  of  her  former 
husband  after  his  decease,  and  as  such  widow  entitled  to 
dower. 

In  Cox  V.  Cox,  19  Ohio  St.  502,  decided  at  the  December 
term,  1869,  the  facts  were  these:  The  husband  deserted  the 
wife  in  Ohio,  went  to  Indiana  and  there  obtained  a  divorce, 
upon  constructive  service.  The  wife  remained  in  Ohio,  and 
three  years  after  the  granting  of  the  Indiana  divorce  to  the 
husband  she  sued  him  for  divorce  and  for  alimony,  alleging 
abandonment  and  gross  neglect  of  duty.  The  trial  court 
granted  a  divorce  and  alimony.  The  husband  appealed,  but 
as  such  an  appeal,  under  the  statutes  of  Ohio,  did  not  affect 
the  decree  as  to  the  divorce,  the  District  Court  considered 
only  the  question  of  alimony  and  rendered  a  new  decree  for 
alimony  against  the  defendant.  The  case  was  then  taken  to 
the  Supreme  Court  of  the  State.  In  that  court  attention  was 
called  to  the  fact  that  under  the  statutes  of  Ohio  and  the  de- 
cisions of  its  courts  jurisdiction  might  be  exercised  over  non- 
residents in  divorce  cases,  and  reference  was  made  to  various 
[496] 


HADDOCK   I'.    HADDOCK 

authorities  as  tending  to  show  that  public  pohcy  required  the 
recognition  of  the  vahdity  of  such  decrees  in  other  States  as 
to  the  dissolution  of  the  marriage.  After  stating  the  facts, 
and  observing  that  the  wife  was  entitled  under  the  laws  of 
Ohio  to  either  divorce  or  alimony,  or  both,  at  her  election,  and 
alluding  to  the  Indiana  decree,  the  court  said  (p.  512): 

"The  question,  therefore,  is,  whether  the  ex  parte  decree 
can  be  made  available,  not  merely  to  effect  a  dissolution  of 
the  marriage,  but  to  defeat  the  right  of  the  petitioner  to 
the  alimony  which  the  statute,  upon  the  facts  as  they  exist 
in  regard  to  the  husband's  desertion,  intended  to  provide  for 
her. 

"We  think  the  decree  ought  not  to  have  such  effect. 

"In  arriving  at  this  conclusion  we  make  no  distinction  be- 
tween a  decree  rendered,  under  the  circumstances  of  this  case, 
in  a  foreign,  and  one  rendered  in  a  domestic  forum. 

"In  either  case,  to  give  to  a  decree  thus  obtained  the  effect 
claimed  for  it,  would  be  to  allow  it  to  work  a  fraud  upon  the 
pecuniary  rights  of  the  wife.  Such  a  result,  in  our  opinion, 
is  rendered  necessary  by  no  principle  of  comity  or  public  policy 
— the  only  grounds  upon  which  ex  parte  decrees  of  divorce  are 
authorized  and  supported. 

"It  is  not  essential  to  the  allowance  of  alimony  that  the 
marriage  relation  should  subsist  up  to  the  time  it  is  allowed. 
On  appeal,  alimony  may  be  decreed  by  the  District  Court, 
notwithstanding  the  subsisting  divorce  pronounced  by  the 
Court  of  Common  Pleas.  It  is  true  that  the  statute  speaks 
of  the  allowance  as  being  made  to  the  wife.  But  the  term 
'wife'  may  be  regarded  as  used  to  designate  the  person,  and 
not  the  actual  existing  relation;  or  the  petitioner  may  still 
be  regarded  as  holding  the  relation  of  wife  for  the  purpose  of 
enforcing  her  claim  to  alimony." 

The  following  cases  were  cited  by  the  court  as  sustaining 
the  right  of  the  wife  to  maintain  an  independent  proceeding 
for  alimony,  even  after  the  husband  had  obtained  a  divorce; 
32  [  497  ] 


THE   LAW   OF    M-VRRL^GE   AND    DIVORCE 

Richardson  v.  Wilson,  8  Yerger,  67;  Crane  v.  Meginnis,  1  Gill 
&  J.  464,  and  Shotueil  v.  Shotwell,  1  Sm.  &  M.  Ch.  R.  51. 

In  Doerr  v.  Forsythe  (1893),  50  Ohio  St.  726.  an  Indiana 
divorce  granted  to  a  husband,  upon  constructive  senice,  was 
held  not  to  bar  the  right  of  the  wife  to  dower  in  lands  in  Ohio 
owned  during  coverture  by  the  husband. 

Au^AMA.— In  Thompson  v.  State  (1856),  28  Alabama,  12, 
the  facts  were  the>e:  Thompson  deserted  his  family  in  Miss- 
issippi, went  to  Arkansas  and  there  obtained  a  divorce  upon 
constructive  service.  The  wife  returned  to  her  father's  home 
in  Alabama,  and,  after  the  divorce,  the  husband  also  went  to 
Alabama,  where  he  again  married.  He  was  prosecuted  for 
and  comicted  of  bigamy.  The  con^-iction  was  set  side,  how- 
ever, upon  the  ground  that  the  guilt  or  innocence  of  the  accused 
depended  upon  the  question  as  to  whether  he  had  a  bona  fide 
domicil  in  Arkansas  during  the  pendency  of  the  proceedings 
for  divorce.  Harding  v.  Alden,  9  Maine,  140,  was  cited  as 
authority. 

In  a  subsequent  case,  however,  Turner  v.  Turner  (1870), 
44  Alabama,  4-37,  the  Supreme  Court  of  -Alabama  strictly  lim- 
ited, as  against  a  citizen  of  Alabama,  the  effect  of  a  divorce 
rendered  in  another  State  upon  constructive  service.  The 
parties  were  married  in  Alabama,  where  the  husband  deserted 
the  wife,  and  located  in  Indiana,  where  he  obtained  a  divorce 
upon  constructive  service.  The  wife  remained  in  Alabama, 
and,  after  the  granting  of  the  divorce  to  the  husband,  she  sued 
him  in  Alabama  for  a  divorce  and  alimony.  The  husband 
pleaded  the  Indiana  decree  in  bar.  The  trial  court,  however, 
held  that  the  wife  was  entitled  to  maintain  her  suit  and  en- 
tered a  decree  for  divorce  and  alimony.  In  affirming  the  de- 
cree the  Supreme  Court  of  Alabama,  upon  the  authority  of 
Thompson  v.  State,  supra,  said  that  the  decree  of  divorce  ob- 
tained by  the  husband  in  Indiana  might  protect  him  against 
prosecution  for  bigamy  should  he  marry  again  in  Alabama. 
Referring  to  that  decree  it  further  said  (p.  450): 
[498] 


HADDOCK    r.    HADDOCK 

"But  without  stopping  to  inquire  whether  it  was  obtained 
by  him  by  fraud,  and  therefore  is  \'icious  on  that  account  or 
not,  it  certainly  cannot  affect  the  rights  of  the  complainant, 
except  her  right  in  the  husband  as  husband.  If  it  is  valid, 
it  unmarries  him  and  sets  him  free  from  his  marital  vows  to 
her.  He  is  no  longer  the  complainant's  husband.  But  it 
does  not  settle  her  right  to  aUmony;  it  does  not  settle  her  right 
to  dower  in  his  lands,  and  her  statutory  right  to  distribution 
of  his  property  in  this  State,  in  the  event  she  should  sur\dve 
him,  nor  any  other  interest  of  a  pecuniary  character  she  may 
have  against  him.  ...  It  is  the  duty  of  the  State  to 
protect  its  own  citizens,  within  its  ovra  borders.  This  is  the 
natural  compensation  for  allegiance.  This  high  duty  ex- 
tends to  all  the  pecuniary  rights  of  the  citizens,  as  well  as  to 
the  rights  of  security  of  person.  ...  No  obUgation  of 
comity  is  paramount  to  this  duty.  Without  a  constant  and 
effective  exertion  of  it,  citizensliip  would  become  a  farce. 
.  .  .  The  wife  is  as  much  the  citizen  of  the  State  as  the 
husband,  and  is  entitled  to  the  protection  of  its  laws  to  the 
same  extent,  so  long  as  she  remains  within  its  jurisdiction. 
It  would  be  a  scandal  to  justice  to  imperil  her,  and  sacrifice 
her  most  important  and  cherished  rights  upon  a  mere  techni- 
cality; a  technicaUty  that  often  contradicts  the  truth.  Wlien 
her  protection  requires  it,  it  would  be  cruelly  unjust  for  the 
State,  of  her  actual  residence  and  domicil,  to  repudiate  its 
own  right  of  jurischction  to  give  her  aid.  I  therefore  think 
that  the  better  opinion  is,  that  she  has  the  right  to  file  her 
bill  here,  and  to  all  the  rehef  that  the  coiu-t  could  give  her, 
notv\ithstanding  her  husband  might  not  be  domiciled  in  this 
State  at  the  commencement  and  during  the  whole  pendency 
of  her  litigation  with  him.     .     .     . 

"Then,  if  the  State  courts  have  competent  jurisdiction  in 
such  a  case,  as  undoubtedly  they  have,  they  may  go  on  and 
exercise  that  jurisdiction  in  the  manner  and  to  the  extent 
prescribed  by  their  own  laws. 

[499] 


THE    LAW   OF   MARRIAGE   AND    DIVORCE. 

"Under  the  laws  of  this  State,  by  the  contract  and  con- 
summation of  a  marriage,  the  wife,  if  she  has  no  separate  es- 
tate, becomes  entitled  to  dower  in  the  husband's  lands,  and 
a  certain  distributive  interest  in  his  personal  estate,  if  she 
survives  him,  and  to  temporary  and  permanent  ahmony  out 
of  his  estate  upon  a  separation  by  divorce  in  her  favor.  These 
are  rights  that  she  cannot  legally  be  deprived  of  without  her 
consent  or  her  fault.  ...  If  this  were  not  so,  then  these 
important  statutory  provisions  in  favor  of  the  wife  would  be 
repealed  or  rendered  null  by  a  foreign  divorce,  of  which  she 
had  no  notice  and  no  knowledge,  during  its  whole  progress 
through  the  forms  of  a  foreign  court.  To  sue  in  her  own  dom- 
icil  is  necessary  for  the  protection  of  the  wife.  It,  therefore, 
overrides  the  technical  rule  that  the  husband's  domicil  is  also 
the  domicil  of  the  wife.  .  .  .  Here  the  testimony  shows 
that  the  wife  has  no  separate  estate.  The  witnesses  for  the 
defendants  say  when  she  was  married  she  'brought  notliing 
with  her.'  It  also  appears  that  during  her  connection  with 
the  defendant  Matthew  Turner,  as  his  wife,  she  was  a  chaste, 
industrious,  economical,  faithful,  useful  and  obedient  wife; 
and  that  the  husband's  property  is  very  considerable,  worth 
possibly  not  less  than  one  hundred  thousand  dollars.  It  is 
also  shown  that  his  three  children  by  a  former  marriage  are 
already  sufficiently  provided  for. 

"Under  such  a  state  of  facts  the  sum  of  thirty  thousand 
dollars  was  not  an  unreasonable  sum  for  permanent  alimony 
to  be  allowed  to  the  wife,  nor  the  sum  of  eight  hundred  dollars 
too  large  for  temporary  ahmony.     .     .     ." 

Indiana.— In  Tolen  v.  Tolen  (1831),  2  Blackf.  407,  the  facts 
were  these:  A  wife,  on  being  deserted  in  Kentucky,  removed 
to  and  became  domiciled  in  Indiana,  and  after  a  residence 
there  of  five  years  sued  for  a  divorce  from  the  non-resident 
husband.  In  an  opinion  of  great  length  the  court  considered 
the  question  of  its  power  to  grant  a  divorce  which  would  be 
valid  in  Indiana,  and  decided  it  had  such  power,  but  ex- 
[500] 


HADDOCK   V.  HADDOCK 


pressly  reserved  passing  on  the  question  whether  the  decree 
would  have  extraterritorial   force. 

In  Hood  V.  State  (1877),  56  Indiana,  263,  271,  it  was  declared 
that  as  an  ex  parte  divorce  in  favor  of  one  domiciled  within 
the  jurisdiction  of  a  State,  and  against  a  non-resident,  although 
founded  upon  constructive  service,  was  valid  as  to  the  plain- 
tiff, "public  policy  demands  that  it  should  be  held  vaUd  as 
to  both  parties." 

In  Hilbish  V.  Battle  (1896),  145  Indiana,  59,  certain  sections 
of  the  Indiana  Revised  Statutes,  wherein  it  was  provided  that 
the  divorce  of  one  party  to  a  marriage  should  dissolve  the  con- 
tract as  to  both,  and  that  a  divorce  decreed  in  another  State 
by  a  court  having  juris(Uction  of  the  cause  should  have  full 
effect  in  Inchana,  were  held  to  be  appUcable  to  a  decree  of 
divorce  granted  in  another  State,  in  favor  of  a  husband,  upon 
constructive  service,  and  the  same  effect  was  given  to  the 
decree,  as  to  the  rights  of  the  wife  in  the  property  of  the  hus- 
band in  Indiana,  as  if  the  tUvorce  had  been  rendered  in  Indiana. 
Missouri.— In  Gould  v.  Crow,  57  Missouri,  200,  a  decree 
of  divorce  regularly  obtained  by  a  husband  in  Indiana,  on  an 
order  of  pubUcation,  without  personal  service,  was  held  to 
operate  as  a  divorce  in  favor  of  the  husband  in  Missouri,  so 
as  to  prevent  the  wife  from  claiming  her  dower  in  lands  in 
Missouri  o\\Tied  by  the  husband.     Harding  v.  Alden,  9  Maine, 
140,  was  reUed  upon  as  authority.     A  statute  of  Missouri, 
barring  the  claim  of  a  wife  for  dower  after  divorce  granted  by 
reason^of  her  fauR,  was  held  to  apply  to  all  divorces,  whether 
obtained  in  Missouri  or  in  other  States,  and  whether  obtained 
on  personal  service  or  by  order  of  publication.    The  doctrine 
of  Gould  V.  Crow  was  reaffirmed  and  appUed  in  Anthony  v. 
Rice,  110  Missouri,  233. 

Wisconsin.— In  Shafer  v.  Bushnell  (1869),  24  Wisconsm, 
372,  an  ex  parte  divorce  granted  a  wife  in  Minnesota  upon  con- 
structive ser\dce  of  the  defendant,  a  citizen  of  Minnesota,  was 
held  upon  the  grounds  of  comitv  to  be  conclusive  in  Wisconsin 

[501] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

in  respect  to  the  status  or  domestic  and  social  condition  of 
the  wife.  The  decree  was  held  to  bar  an  action  for  criminal 
intercom-se  against  the  person  whom  the  complainant  in  the 
divorce  suit  married  after  the  granting  of  the  divorce. 

In  Cook  V.  Cook  (1882),  56  Wisconsin,  195,  however,  in  an 
elaborate  opinion,  an  ex  parte  divorce  obtained  in  Michigan 
upon  constructive  service  merely,  by  a  husband  who  had  de- 
serted his  wife  in  Wisconsin,  was  held  not  to  affect  the  status 
of  the  wife  in  Wisconsin  nor  to  bar  her  from  suing  in  Wiscon- 
sin for  divorce,  ahmony,  allowance  and  a  division  of  the  prop- 
erty of  such  husband  situated  within  Wisconsin. 

Deducing  the  law  of  the  several  States  from  the  rulings  of 
their  courts  of  last  resort  which  we  have  just  reviewed  and 
ignoring  mere  minor  differences,  the  law  of  such  States  is  em- 
braced within  one  or  the  other  of  the  following  heacUngs: 

a.  States  where  the  power  to  decree  a  divorce  is  recognized, 
based  upon  the  mere  domicil  of  the  plaintiff,  although  the 
decree  when  rendered  will  be  but  operative  within  the  borders 
of  the  State,  wholly  irrespective  of  any  force  which  may  be 
given  such  decree  in  other  States.  Under  this  heading  all 
of  the  States  are  embraced  with  the  possible  exception  of 
Rhode  Island. 

h.  States  which  decline,  even  upon  principles  of  comity,  to 
recognize  and  enforce  as  to  their  own  citizens,  within  their  own 
borders,  decrees  of  divorce  rendered  in  other  States,  when  the 
com-t  rendering  the  same  had  jurisdiction  over  only  one  of  the 
parties.  Under  this  heading  is  embraced  Massachusetts,  New 
Jersey  (with  the  quahfication  made  by  the  decision  in  59 
N.  J.  Eq.  606)  and  New  York. 

c.  States  which,  whilst  giving  some  effect  to  decrees  of  di- 
vorce rendered  against  its  citizens,  in  other  States  where  the 
court  had  jurisdiction  of  the  plaintiff  alone,  either  place  the 
effect  given  to  such  decrees  upon  the  principle  of  State  comity 
alone,  or  make  such  hmitations  upon  the  effect  given  to  such 
decree  as  indubitably  establishes  that  the  recognition  given 
[502] 


HADDOCK  V.   HADDOCK 

is  a  result  merely  of  State  comity.  As  the  greater  includes 
the  less,  this  class  of  course  embraces  the  cases  under  the 
previous  heading.  It  also  includes  the  States  of  Alabama, 
Maine,  Ohio  and  Wisconsin. 

d.  Cases  which,  although  not  actually  so  deciding,  yet  lend 
themselves  to  the  view  that  ex  parte  decrees  of  divorce  rendered 
in  other  States  would  receive  recognition  by  virtue  of  the  due 
faith  and  credit  clause.  And  this  class  embraces  Missouri  and 
Rhode  Island. 

Coming  to  consider,  for  the  purpose  of  classification,  the 
decided  cases  in  other  States  than  those  previously  re\'iewed, 
which  have  been  called  to  our  attention,  the  law  of  such  States 
may  be  said  to  come  under  one  or  the  other  of  the  foregoing 
headings,  as  follows: 

Proposition  a  embraces  the  law  of  all  the  States,  since  in  the 
decision  of  no  State  is  there  an  intimation  expressing  the  ex- 
ception found  in  the  Rhode  Island  case  which  caused  us  to 
exclude  that  State  from  this  classification. 

Under  proposition  b  comes  the  law  of  the  States  of  Penn- 
sylvania, Vermont  and  South  Carohna.  A  line  of  decisions  of 
the  State  of  North  Carolina  would  also  cause  us  to  embrace 
the  law  of  that  State  within  this  classification,  but  for  a  doubt 
engendered  in  our  minds  as  to  the  effect  of  the  law  of  North 
Carohna  on  the  subject,  resulting  from  suggestions  made  by 
the  North  Carolina  court  in  the  opinion  in  the  Bidwell  case, 
52  S.  E.  Rep.  58. 

Proposition  c  embraces  the  law  of  Kansas,  Louisiana,  Mary- 
land, Michigan,  Minnesota,  Nebraska  and  New  Hampshire. 
And  it  is  pertinent  here  to  remark  that  in  Michigan,  3  Comp. 
Laws  Michigan  (1897),  par.  8617,  c.  232,  sec.  2,  the  obtaining 
of  a  cUvorce  in  another  State  from  a  citizen  of  Michigan  is 
made  cause  for  the  granting  of  a  divorce  in  Michigan  to  its 
citizens.  A  hke  provision  is  also  in  the  statutes  of  Florida. 
Rev.  Stat.  Florida  (1902),  sec.  1480. 

Under   proposition  d  we  embrace   the  remaining  States, 

[503] 


THE   LAW  OF   MARRIAGE   AND    DIVORCE 

although  as  to  several  the  classification  may  admit  of  doubt, 
viz.,  California,  Illinois,  Iowa,  Kentucky  and  Tennessee. 

It  indubitably,  therefore,  follows  from  the  special  review  we 
have  made  of  cases  in  certain  States,  and  the  classification 
just  made  of  the  remaining  State  cases  which  were  called  to 
our  attention  and  which  we  have  previously  cited  in  the  mar- 
gin, that  the  contention  is  without  foundation,  that  such  cases 
estabhsh  by  an  overwhelming  preponderance  that,  by  the  law 
of  the  several  States,  decrees  of  divorce  obtained  in  a  State 
with  jurisdiction  alone  of  the  plaintiff  are,  in  virtue  of  the  full 
faith  and  credit  clause  of  the  Constitution,  entitled  to  be 
enforced  in  another  State  as  against  citizens  of  such  State. 
Indeed  the  analysis  and  classification  which  we  have  made 
serves  conclusively  to  demonstrate  that  the  limited  recog- 
nition which  is  given  in  most  of  the  States  to  such  ex  parte 
decrees  of  divorce  rendered  in  other  States  is  wholly  incon- 
sistent with  the  theory  that  such  limited  recognition  is  based 
upon  the  operation  of  the  full  faith  and  credit  clause  of  the 
Constitution  of  the  United  States,  and  on  the  contrary  is  con- 
sistent only  with  the  conception  that  such  Hmited  recognition 
as  is  given  is  based  upon  State  comity.  No  clearer  demon- 
stration can  be  made  of  the  accuracy  of  this  statement  than 
the  obvious  consequence  that  if  the  full  faith  and  credit  clause 
were  now  to  be  held  applicable  to  the  enforcement  in  the  States 
generally  of  decrees  of  divorce  of  the  character  of  the  one  here 
involved  it  would  follow  that  the  law  of  nearly  all  of  the  States 
would  be  overthrown,  and  thus  it  would  come  to  pass  that  the 
decisions  which  were  rehed  upon  as  estabhshing  that  the  due 
faith  and  credit  clause  applies  to  such  decrees  would  be  over- 
ruled by  the  adoption  of  the  proposition  which  it  is  insisted 
those  decisions  maintain.  The  only  escape  from  this  conclu- 
sion would  be  to  say  that  the  law  of  the  States  as  shown  by 
the  decisions  in  question  would  remain  unaffected  by  the 
ruHng  of  the  full  faith  and  credit  clause  because  not  repugnant 
to  that  clause.  Tliis  would  be,  however,  but  to  assert  that 
[504] 


HADDOCK   V.    HADDOCK 

the  full  faith  and  credit  clause  required  not  that  full  faith  and 
credit  be  given  in  one  State  to  the  decrees  of  another  State, 
but  that  only  a  limited  and  restricted  enforcement  of  a  decree 
of  one  State  in  another  would  fulfill  the  requirements  of  that 
pro\dsion  of  the  Constitution.  To  so  decide  would  be  to  de- 
stroy the  true  import  of  the  full  faith  and  crecUt  clause  as  pointed 
out  in  the  outset  of  this  opinion.  Thus,  in  its  ultimate  aspect 
the  proposition  rehed  upon  reduces  itself  to  this,  either  that 
the  settled  law  of  most  of  the  States  of  the  Union  as  to  di- 
vorce  decrees  rendered  in  one  State,  where  the  court  render- 
ing the  decree  had  jurisdiction  only  of  the  plaintiff,  must  be 
held  to  be  invalid,  or  that  an  important  provision  of  the  Con- 
stitution of  the  United  States  must^be  shorn  of  its  rightful 
meaning. 

Without  questioning  the  power  of  the  State  of  Connecticut 
to  enforce  within  its  own  borders  the  decree  of  divorce  which 
is  here  in  issue,  and  without  intimating  a  doubt  as  to  the  power 
of  the  State  of  New  York  to  give  to  a  decree  of  that  character 
rendered  in  Connecticut,  within  the  borders  of  the  State  of 
New  York  and  as  to  its  own  citizens,  such  efficacy  as  it  may 
be  entitled  to  in  view  of  the  pubHc  poUcy  of  that  State,  we 
hold  that  the  decree  of  the  court  of  Connecticut  rendered  under 
the  circumstances  stated  was  not  entitled  to  obligatory  en- 
forcement in  the  State  of  New  York  by  virtue  of  the  full  faith 
and  credit  clause.  It  therefore  follows  that  the  court  below 
did  not  violate  the  full  faith  and  credit  clause  of  the  Constitu- 
tion in  refusing  to  admit  the  Connecticut  decree  in  evidence; 

and  its  judgment  is,  therefore, 

Afftrnned. 

Mr.  Justice  Brown,  wdth  whom  were  Mr.  Justice  Harlan, 
Mr.  Justice  Brew^er  and  Mr.  Justice  Holmes,  dissenting. 

Marriage  between  these  parties  was  solemnized  June  4,  1868. 
They  separated  the  same  day,  without  a  consummation,  and 

[505] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE 

have  never  lived  together  since.  No  matrimonial  domicil  was 
ever  established  in  New  York  or  elsewhere.  Defendant  left 
New  York  soon  after  the  wedding,  drifted  about  the  country 
for  several  years,  and  finally  settled  in  Connecticut  in  1877", 
remained  there  twelve  years,  during  which  time,  and  in  1881, 
he  obtained  a  divorce  in  the  Superior  Court  of  Litchfield  County, 
which  he  now  sets  up  in  defense  of  tliis  action. 

Plaintiff  took  no  steps  for  twenty-six  years  to  obtain  a  legal 
separation  or  maintenance,  when,  in  July,  1894,  she  applied  to 
the  Superior  Court  of  the  State  of  New  York  for  a  summons  by 
publication.  The  defendant  did  not  appear,  and  a  decree  was 
rendered  against  him  by  default,  separating  the  parties  and 
granting  alimony  of  $1,500  a  year.  This  decree  appears  to 
have  been  abortive,  so  far  as  respects  alimony  at  least,  prob- 
ably for  lack  of  personal  service  on  the  defendant.  Meantime, 
and  in  1891,  defendant  had  inherited  a  considerable  property 
from  his  father. 

Tliis  action  was  begun  by  a  summons  dated  June  3,  1899, 
thirty-one  years  after  the  marriage;  was  served  upon  the  de- 
fendant, who  answered  December  18,  1899,  setting  up,  amongst 
other  things,  the  decree  of  the  Superior  Court  of  Litchfield 
County,  dissolving  the  marriage,  the  vaHclity  of  which  presents 
the  only  Federal  question  in  this  case. 

1.  This  decree  is  attacked  upon  the  ground  that  the  Connec- 
ticut court  acted  without  jurisdiction  of  the  parties  lawfully 
obtained.  The  record  in  that  case  shows  that  notice  of  the 
pendency  of  the  petition  was  ordered  to  be  pubhshed  in  a 
Litchfield  paper,  and  also  that  a  copy  of  the  petition  be  sent 
to  the  respondent  by  mail,  postage  paid,  at  Tarrytown,  New 
York.  While  there  is  no  affidavit  of  the  publication  of  the 
notice,  there  is  a  recital  in  the  decree  "that  said  complaint  and 
writ  have  been  duly  served  upon  the  defendant  pursuant  to 
an  order  of  notice  made  thereon  by  the  clerk  of  this  court." 
This  is  sufficient  prima  facie  evidence  of  the  publication  to 
entitle  the  record  to  be  received.  Applegate  v.  Lexington  &c. 
[506] 


HADDOCK   V.    HADDOCK 


Mining  Co.,  117  U.  S.  255,  268,  wherein  it  was  said  by  the 
court  that  "while  it  must  be  conceded  that,  in  order  to  give 
the  court  jurisdiction  over  the  persons  of  the  defendants,  all 
the  steps  pointed  out  by  the  statute  to  effect  constructive  serv- 
ice on  non-residents  were  necessary,  yet  it  does  not  follow  that 
the  evidence  that  the  steps  were  taken  must  appear  in  the 
record,  unless  indeed  the  statute,  expressly  or  by  impUcation, 
requires  it.  .  .  .  Therefore  every  presumption  not  in- 
consistent with  the  record  is  to  be  indulged  in,  in  favor  of  its 
jurisdiction.  .  .  .  It  is  to  be  presumed  that  the  court  be- 
fore making  its  decree  took  care  to  see  that  its  order  for 
constructive  service,  on  which  its  right  to  make  the  decree  de- 
pended, had  been  obeyed." 

As  the  record  was  rejected  for  reasons  appearing  only  upon 
its  face,  it  is  unnecessary  to  decide  whether  the  recitals  in  the 
decree  can  be  contradicted.  Possibly  the  New  York  court 
might  have  assailed  its  vaHdity  by  showing  that,  notwithstand- 
ing the  recitals  in  the  record,  the  court  acquired  no  jurisdic- 
tion of  the  defendant  by  failure  to  comply  with  the  order  of 
the  court  with  reference  to  the  pubUcation  of  notice  in  a  news- 
paper, or  in  sending  a  copy  of  the  petition  and  complaint  to 
the  defendant  by  mail  at  Tarrytown,  New  York,  the  last  known 
place  of  residence.  The  fact  that  the  referee  refused  to  admit 
the  record,  even  as  prima  facie  evidence,  foreclosed  any  defense 
founded  upon  the  actual  failure  to  obtain  jurisdiction  over  the 
defendant. 

There  is  no  doubt  of  the  proposition  that  a  decree  of  divorce 
may  be  lawfully  obtained  at  the  matrimonial  domicil,  notwith- 
standing that  the  defendant  may  have  taken  up  his  or  her  resi- 
dence separate  from  the  other  party  in  another  State,  provid- 
ing that  the  law  of  the  domicil  with  respect  to  the  personal 
service  or  pubhcation  be  scrupulously  observed.  Atherton  v. 
Atherton,  181  U.  S.  155. 

Doubtless  the  jurisdiction  of  the  court  granting  the  divorce 
may  be  inquired  into,  and  if  it  appear  that  the  plaintiff  had  not 

[507] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE 

acquired  a  bona  fide  domicil  in  that  State  at  the  time  of  insti- 
tuting proceedings,  the  decree  is  open  to  a  collateral  attack, 
Bell  V.  Bell,  181  U.  S.  175,  and  a  recital  in  the  proceethngs  of  a 
fact  necessary  to  show  jurisdiction  may  be  contradicted, 
Thompson  v.  Whitman,  18  Wall.  457;  Slreitwolf  v.  Streitwolf, 
181  U.  S.  179;  Andrews  v.  Andreios,  188  U.  S.  14. 

Subject  to  these  conditions,  each  State  has  the  right  to  reg- 
ulate the  marital  status  of  its  citizens,  at  least  so  far  as  to 
determine  in  what  manner  and  by  whom  marriages  may  be  sol- 
emnized, what  shall  be  deemed  the  age  of  consent,  what 
obligations  are  assumed,  what  property  rights  are  created,  for 
what  causes  divorces  shall  be  granted,  for  what  length  of 
time  the  domicil  of  plaintiff  shall  have  been  acquired  prior  to 
the  institution  of  the  proceedings,  and  in  what  manner  notice 
shall  be  given  to  the  defendant.  Nor  is  the  power  of  the  leg- 
islature in  this  connection  ousted  by  the  fact  that  the  other 
party  to  the  contract  resides  in  another  State,  provided  that 
in  case  of  proceecUngs  adverse  to  such  party  he  or  she  shall 
be  given  such  notice  as  due  process  of  law  requires.  If  such 
proceedings  be  in  rem  or  quasi  in  rem,  notice  by  pubhcation 
is  ordinarily  deemed  sufficient.  But  in  case  of  actions  in  per- 
sonam for  the  recovery  of  damages,  personal  service  within 
the  jurisdiction  is  vital  to  the  proceedings.  Pennoyer  v.  Neff, 
95  U.  S.  714;  Huling  v.  Kaiu  Valley  Railway  and  Improve- 
ment Co.,  130  U.  S.  559. 

By  the  laws  of  Connecticut  of  1878,  c.  71,  p.  305,  exclusive 
jurisdiction  is  given  to  the  Superior  Courts  to  grant  divorces 
for  several  causes,  among  which  are  "  willful  desertion  for  three 
years  with  total  neglect  of  duty,"  with  a  further  provision 
(Gen.  Stats.  4555),  "that  plaintiff  shall  have  continuously  re- 
sided in  the  State  three  years  next  before  the  date  of  the  com- 
plaint, "  with  certain  exceptions  not  material  t(3  be  noticed.  A 
further  provision,  sec.  4553,  that,  "where  the  adverse  party 
resides  out  of,  or  is  absent  from  the  State,  or  the  whereabouts 
of  the  adverse  party  is  imknown  to  the  plaintiff,  any  judge  or 
[508] 


HADDOCK   V.    HADDOCK 

clerk  of  the  Supreme  Court  of  Errors,  or  the  Superior  Court, 
or  any  county  conunissioner,  may  make  such  order  of  notice 
as  he  may  deem  reasonable,  and,  such  notice  having  been  given 
and  duly  proved  to  the  court,  it  may  hear  such  complaint 
if  it  find  that  the  defendant  has  actually  received  notice  that 
the  complaint  is  pending,  and  if  it  shall  not  appear  that  the 
defendant  has  had  such  notice,  the  court  may  hear  such  case, 
or,  if  it  see  cause,  order  such  further  notice  to  be  given  as  it 
may  deem  reasonable,  and  continue  the  complaint  until  the 
order  is  compHed  with." 

The  complaint  alleged  a  willful  desertion  of  the  plaintiff  for 
more  than  three  years,  and  the  court  found  this  to  be  the  fact. 

2.  The  case  turns  upon  the  question  whether  the  Superior 
Court  of  Litchfield  County  gained  jurisdiction  by  a  residence 
of  the  plaintiff  within  the  State  for  more  than  three  years.  The 
testimony  also  showed  that  the  defendant  had  acquired  a  sep- 
arate domicil  in  New  York,  and  had  been  living  there  for  about 
thirteen  years. 

In  discussing  this  question  two  propositions  may  be  admitted 
at  once,  and  discarded  as  having  no  relevancy  to  the  case: 

1.  That  a  judgment  for  damages  in  an  action  in  personam 
is  vahd  only  when  personal  service  has  been  made  upon  the 
defendant  within  the  jurisdiction  of  the  court  rendering  the 
judgment.  This  disposes  at  once  of  the  cases  of  Pennoyer  v. 
Neff,  95  U.  S.  714;  of  Mississippi  &c.  R.  R.  Co.  v.  Ward,  2 
Black,  485,  where  an  Iowa  court  had  undertaken  to  abate  a 
nuisance  on  the  IlHnois  side  of  the  Mississippi  river;  and  of 
Delaware  &c.  R.  R.  Co.  v.  Pennsylvania,  198  U.  S.  342,  where 
a  State  had  attempted  to  tax  property  having  a  permanent 
situs  in  another  State. 

2.  That  the  courts  of  one  State  may  not  grant  a  divorce 
against  an  absent  defendant  to  any  person  who  has  not  ac- 
quired a  bona  fide  domicil  in  that  State.  The  same  rule  appHes 
if  he  has  removed  thither  solely  for  the  purpose  of  acquiring 
a  domicil  and  obtaining  a  divorce  for  a  cause,  which  would  have 

[509] 


THE   LAW  OF  MARRIAGE   AND   DIVORCE 

been  insufficient  in  the  State  from  which  he  removed.     Andrews 
V.  Andrews,  188  U.  S.  14. 

The  jurisdiction  of  the  Connecticut  court  in  this  case  is 
shown,  not  by  the  facts  as  they  appear  in  this  case,  but  from 
the  record  in  that  case,  and  primarily  from  the  petition,  which 
under  the  practice  in  that  State  is  incorporated  with  the  sum- 
mons.   The  allegations  are: 

"On  the  first  day  of  January,  1869,  the  defendant  willfully 
deserted  the  plaintiff,  and  has  continued  said  desertion,  with 
total  neglect  of  all  the  duties  of  the  marriage  on  her  part  to  be 
performed  to  the  date  of  this  writ,  being  for  more  than  three 
years,  and  during  the  plaintiff's  residence  in  this  State." 

It  is  conceded  that  such  desertion  is  good  ground  for  a  di- 
vorce in  Connecticut,  which  may  be  granted  to  a  plaintiff  who 
has  continuously  resided  in  the  State  three  years  next  before 
the  date  of  the  complaint.  The  complaint  obviously  made  a 
case  for  divorce  under  the  statute.  The  court  found  that  the 
complaint  and  writ  had  been  duly  served  on  the  defendant, 
pursuant  to  an  order  of  notice  made  thereon  by  the  clerk;  that 
the  allegations  of  the  complaint  had  been  sustained  and  a  di- 
vorce was  granted. 

The  case  then  resolves  itself  into  the  single  question  whether 
a  divorce  granted  to  a  plaintiff  lawfully  domiciled  within  a 
State  as  against  a  defendant  domiciled  in  another  State,  who 
has  been  served  by  pubHcation  or  letter  only,  is  a  vaUd  defense 
to  a  suit  by  the  latter  for  a  separation  and  alimony. 

Certain  cases  in  this  court  tend  strongly  to  support  the  pro- 
ceedings in  Connecticut.  Strader  v.  Graham,  10  How.  82,  was 
an  action  to  recover  the  value  of  certain  slaves  carried  into 
Ohio,  a  free  State.  The  case  was  dismissed,  as  involving  a 
question  of  the  local  law  of  Kentucky,  the  court  remarking: 
"  Every  State  has  an  undoubted  right  to  determine  the  status, 
or  domestic  and  social  condition,  of  the  persons  domiciled  within 
its  territory,  .  .  .  and  that  it  was  exclusively  in  the  power 
of  Kentucky, "  (wherein  the  suit  was  brought)  "  to  determine 
[510] 


HADDOCK   V.   HADDOCK 

for  itself  whether  their  employment  in  another  State  should  or 
should  not  make  them  free  upon  their  return. " 

In  Barber  v.  Barber,  21  How.  582,  a  New  York  court  decreed 
a  separation  and  ahmony  to  the  wife.  The  husband  removed 
to  Wisconsin  for  the  purpose  of  placing  himself  beyond  the 
jurisdiction  of  the  court  which  could  enforce  it,  and  there  ob- 
tained a  divorce  a  vinculo  upon  the  ground  of  abandonment. 
The  sole  question  raised  by  the  record  was:  "Whether  a  wife 
divorced  a  mensa  et  thoro  can  acquire  another  domicilation  in 
a  State  of  this  Union  different  from  that  of  her  husband,  to 
entitle  her  by  her  next  friend  to  sue  him  in  a  court  of  the 
United  States,  having  equity  jurisdiction,  to  recover  from  liim 
alimony  due,  and  which  he  refuses  to  make  arrangements  to 
pay;  and  whether  a  court  of  equity  is  not  a  proper  tribunal  for 
remedy  in  such  a  case." 

It  was  a  suit  to  recover  upon  a  judgment  obtained  in  New 
York  before  proceedings  instituted  in  Wisconsin,  and  was  sus- 
tained. Obviously,  the  Wisconsin  divorce  was  no  defense,  but 
its  vaUdity  was  not  impugnisd. 

Cheever  v.  Wilson,  9  Wall.  109,  turned  upon  certain  rights 
of  property,  and  incidentally  upon  a  divorce  obtained  in  In- 
diana, in  a  suit  in  which  the  defendant  appeared.  The  case, 
however,  is  valuable  for  two  questions  decided:  First,  that  a 
decree  of  divorce,  valid  and  effectual  by  the  laws  of  the  State 
in  which  it  was  obtained,  is  valid  and  effectual  in  all  other 
States;  second,  that  a  wife  may  acquire  a  domicil  different 
from  her  husband's  whenever  it  is  necessary  or  proper  that  she 
should  have  such  a  domicil;  and  on  such  a  domicil,  if  the  case 
otherwise  allow  it,  may  institute  proceechngs  for  divorce,  though 
it  be  neither  her  husband's  domicil  nor  have  been  the  domicil 
of  the  parties  at  the  time  of  the  marriage,  or  of  the  offense. 

Of  course,  it  follows  that  if  the  wife  may  obtain  a  new  dom- 
icil her  husband  may  do  likewise,  as  was  done  in  this  case,  after 
the  separation  or  abandonment  had  taken  place.  In  dehver- 
ing  the  opinion,  Mr.  Justice  Swayne  observed:  "The  decree 

[511] 


THE   LAW   OF    MARRIAGE   AND    DIVORCE 

(of  divorce)  was  valid  and  effectual  according  to  the  law  and 
adjudications,  in  Indiana. " 

The  Constitution  and  laws  of  the  United  States  give  the  de- 
cree the  same  effect  elsewhere  which  it  had  in  Indiana.  "  '  If 
a  judgment  is  conclusive  in  the  State  where  it  is  rendered,  it 
is  equally  conclusive  everywhere, '  in  the  courts  of  the  United 
States. " 

In  Cheely  v.  Clayton,  110  U.  S.  701,  a  divorce  obtained  in  a 
Territorial  court,  upon  notice  by  pubUcation  insufficient  under 
the  laws  of  the  Territory,  was  held  to  be  of  no  effect.  The 
court,  however,  observing:  "If  a  wife  is  Uving  apart  from  her 
husband  without  sufficient  cause,  his  domicil  is  in  law  her  dom- 
icil;  and  in  the  absence  of  any  proof  of  fraud  or  misconduct 
on  his  part,  a  divorce  obtained  by  him  in  the  State  of  his  dom- 
icil, after  reasonable  notice  to  her,  either  by  personal  service 
or  by  publication,  in  accordance  with  its  laws,  is  vahd,  although 
she  never  in  fact  resided  in  that  State, "  citing  Burlen  v.  Shan- 
non, 115  Massachusetts,  439,  and  Hunt  v.  Hunt,  72  U.  S.  217. 

In  Maynard  v.  Hill,  125  U.  S.  190,  a  legislative  divorce  was 
upheld,  and  it  was  said  that  the  fact  that  no  cause  existed  for 
the  divorce,  and  that  it  was  obtained  without  the  knowledge 
of  the  wife,  cannot  affect  the  validity  of  the  act.  It  was  fur- 
ther said  that  though  the  conduct  of  the  husband  merited  the 
strongest  reprobation,  his  abandonment  of  his  wife,  his  loose 
morals  and  shameless  conduct  could  have  no  bearing  upon  the 
power  of  the  assembly  to  pass  the  act. 

Four  recent  decisions  in  this  court  are  too  important  to  pass 
imnoticed.  In  Bell  v.  Bell,  181  U.  S.  175,  and  in  Streitwolf  v. 
Streitwolf  (p.  179),  it  was  held  that  a  divorce  obtained  in  a 
State  in  which  neither  party  was  domiciled,  upon  service  by 
publication  and  in  another  State,  was  entitled  to  no  faith  and 
credit.  These  decisions  were  unanimous.  And  in  Andrews  v. 
Andreivs,  188  U.  S.  14,  that  a  divorce  obtained  by  one  who  had 
gone  into  another  State  to  procure  a  divorce  in  fraud  of  the 
law  of  the  domicil,  was  also  invalid. 
[512] 


HADDOCK   V.   HADDOCK 

There  remains  the  case  of  Atherton  v.  Atherton,  181  U.  S.  155, 
a  divorce  obtained  by  a  husband  in  Kentucky  which  had  been 
the  matrimonial  domicil,  though  the  wife  had  been  absent  from 
the  State  for  several  months,  and  apparently  had  attempted 
to  acquire  a  new  domicil  in  New  York.  The  court  took  care  to 
confine  the  case  to  the  one  point  decided,  namely,  the  validity 
of  a  divorce  obtained  at  the  matrimonial  domicil.  The  court 
out  of  abundant  caution  expressly  disclaimed  that  the  case 
involved  the  vaUdity  of  a  divorce  granted,  on  constructive 
service,  by  the  court  of  a  State  in  which  only  one  of  the  parties 
ever  had  a  domicil;  nor  the  question  to  what  extent  the  good 
faith  of  the  domicil  may  be  afterwards  inquired  into.  "  In  this 
case,  the  divorce  in  Kentucky  was  by  the  court  of  the  State, 
which  had  always  been  the  undoubted  domicil  of  the  husband, 
and  which  was  the  only  matrimonial  domicil  of  the  husband 
and  wife.  The  single  question  to  be  decided  is  the  validity  of 
that  divorce,  granted  after  such  notice  had  been  given  as  was 
required  by  the  statutes  of  Kentucky. " 

While  the  Atherton  case,  as  already  stated,  was  confined  to 
a  divorce  obtained  at  the  matrimonial  domicil,  the  cases  cited 
by  Mr.  Justice  Gray  in  his  opinion  relate  to  divorces  obtained 
in  a  State  which  was  the  domicil  only  of  the  complaining  party, 
and  are  practically  the  same  as  those  cited  by  him  in  his  opinion 
as  Chief  Justice  of  Massachusetts  in  Burlen  v.  Shannon,  115 
Massachusetts,  438.  In  reading  the  two  cases  together  one  is 
strongly  impressed  with  the  idea  that  in  the  Atherton  case  he 
had  the  former  case  in  mind,  and  gave  it  such  approval  as  the 
facts  in  the  latter  case  would  warrant.  Not  only  had  the  Court 
of  Appeals  of  Kentucky  decided  that  a  wife  residing  in  that 
State  was  entitled  to  obtain  a  decree  of  divorce  against  her 
husband  who  had  left  the  State,  Rhyms  v.  Rhyms,  7  Bush,  315; 
Purzel  V.  Purzel,  91  Kentucky,  634,  but  a  number  of  cases  from 
other  States  were  cited  holding  to  the  same  principle. 

The  opinion  of  the  court  in  the  present  case  admits  that 
where  the  domicil  of  the  husband  is  also  the  domicil  of  mat- 
33  [513] 


THE   LAW   OF    MARRIAGE   AND    DIVORCE 

rimony,  the  courts  of  that  domicil  may  disregard  an  unjusti- 
fiable absence  of  the  wife  therefrom,  and  treat  her  as  having 
her  domicil  there  for  the  purpose  of  dissolving  the  marriage  as 
to  both  parties,  and  that  such  dissolution  would  be  recognized 
in  all  other  States  by  virtue  of  the  full  faith  and  credit  clause, 
citing  to  this  effect  Atherton  v.  Atherton,  181  U.  S.  155,  and,  as 
a  corollary  therefrom,  it  is  admitted  that  no  question  can  arise 
concerning  the  right  of  the  State  of  Connecticut  to  give  effect 
to  a  decree  of  divorce  rendered  in  favor  of  the  husband  while 
domiciled  in  that  State.  The  question  is,  undoubtedly,  as 
stated,  whether  the  Connecticut  court,  in  virtue  of  the  domicil 
of  the  husband  in  that  State,  had  jurisdiction  to  render  a  decree 
against  the  wife  which  was  entitled  to  be  enforced  in  other 
States,  under  the  full  faith  and  credit  clause. 

I  deny,  however,  that  the  final  question  is  whether  this  would 
be  enforcing  a  personal  judgment  rendered  in  another  State 
against  the  defendant,  over  whom  the  court  rendering  the  judg- 
ment had  not  acquired  jurisdiction.  A  proceeding  for  divorce 
is  not  in  'personam  nor  of  an  exceptional  character,  except  so 
far  as  all  proceedings  in  rem  are  governed  by  a  different  rule 
from  that  appUcable  to  proceedings  in  personam.  The  vahdity 
of  the  latter  class  depends  upon  personal  service  of  the  defend- 
ant being  obtained  within  the  jurisdiction.  The  vahdity  of 
the  former  depends  upon  the  jurisdiction  of  the  court  over  the 
res — in  this  case  the  marriage  relation,  the  domicil  of  the  plain- 
tiff, and  such  jurisdiction  over  the  defendant  as  is  consonant 
with  the  general  principles  of  the  constitution  with  regard  to 
due  process  of  law. 

The  propositions  of  the  opinion,  as  we  understand  it,  may  be 
summarized  as  follows : 

That,  if  one  government  by  virtue  of  its  authority  over  mar- 
riage, may  dissolve  the  tie  as  to  citizens  of  another  government, 
that  other  government  would  have  a  similar  power,  and  hence 
the  right  of  every  government  over  its  own  citizens  might  be 
rendered  nugatory  by  the  exercise  of  the  power  which  every 
[514] 


HADDOCK    V.    HADDOCK 

other  government  possesses.  To  illustrate  by  the  present  case: 
That,  if  the  husband  may  desert  his  original  domicil  in  New 
York,  go  to  the  State  of  Connecticut,  acquire  a  domicil  there 
and  procure  a  divorce  which  would  be  binding  in  New  York  as 
to  the  party  there  domiciled,  it  would  follow  that  the  power 
of  the  State  of  New  York  as  to  the  dissolution  of  the  marriage, 
as  to  its  domiciled  citizen,  would  be  of  no  practical  avail.  The 
opinion,  however,  fails  to  state  the  logical  result  of  this  propo- 
sition, viz.,  that  no  divorce  would  be  possible  in  either  State 
without  a  personal  ser\dce  upon  the  other  within  the  State.  If 
the  husband,  having  his  domicil  in  Coimecticut,  could  not  ob- 
tain a  divorce  against  his  vdie  domiciled  in  New  York  without 
a  personal  service,  it  follows  that  the  wife  domiciled  in  New 
York  could  not  obtain  a  divorce  against  her  husband  in  that 
State  without  a  personal  service  there. 

Undoubtedly  the  laws  of  some  States  are  more  hberal  upon 
the  subject  of  chvorce  than  those  of  other  States,  but  that  does 
not  affect  the  question.  If  the  complaining  party  has  acquired 
a  domicil  in  the  State  in  wliich  he  institutes  proceedings,  he  is 
entitled  to  the  benefit  of  the  laws  of  that  State  with  respect  to 
the  causes  of  divorce. 

It  is  argued  that,  as  the  Constitution  delegated  no  authority 
to  the  Government  of  the  United  States  on  the  subject  of  mar- 
riage and  divorce,  yet,  if  the  vahdity  of  the  Connecticut  cUvorce 
in  this  case  be  sustained,  it  follows  that  the  destruction  of  the 
power  of  the  States  over  the  dissolution  of  marriage  of  its  own 
citizens  would  be  brought  about  by  the  full  faith  and  credit 
clause  of  the  Constitution.  But  this  was  the  very  point  de- 
cided in  the  Atherton  case,  where  a  divorce  obtained  in  Ken- 
tucky by  pubhcation  was  held  good  in  New  York,  as  against 
a  proceeding  by  the  wife  for  a  divorce  in  that  State.  It  is  true 
that  the  matrimonial  domicil  was  in  Kentucky.  But  this 
does  not  affect  the  proposition  asserted  in  the  opinion,  that  the 
decree  did  work  a  dissolution  of  the  marriage,  as  to  her,  by  the 
operation  of  the  full  faith  and  credit  clause  of  the  Constitution, 

[515] 


THE   LAW    OF   MARRIAGE   AND   DIVORCE 

and  to  that  extent  it  clicl  work  a  destruction  of  the  power  of 
the  State  of  New  York  over  the  dissolution  of  the  marriage. 
But  the  argument  to  that  effect  was  not  considered  by  this 
court  to  be  sound.  It  does  undoubtedly  follow  that  the  res, 
that  is,  the  marriage  relation,  was  as  much  in  the  State  of  New 
York  as  it  was  in  the  State  of  Connecticut,  but  it  does  not  fol- 
low that  the  action  of  the  Connecticut  court  with  respect  to 
that  res  is  not  as  much  obligatory  in  New  York  as  in  Connect- 
icut. It  is  of  the  very  essence  of  proceedings  in  rem  that  the 
decree  of  a  court  with  respect  to  the  res,  whether  it  be  a  vessel, 
a  tract  of  land  or  the  marriage  relation,  is  entitled  to  be  re- 
spected in  every  other  State  or  country.  The  status  fixed  by 
the  adjudication  in  the  State  of  the  former  is  operative  every- 
where. Indeed,  the  proposition  is  so  elementary  as  not  to  need 
the  citation  of  an  authority. 

The  conclusion  of  the  argument  is  that,  the  courts  of  New 
York  having  the  same  power  to  decree  a  dissolution  of  the 
marriage  at  the  suit  of  the  wife,  that  the  courts  of  Connecticut 
would  have  to  make  a  similar  decree  at  the  suit  of  the  husband, 
it  would  become  a  mere  race  of  diUgence  between  the  parties 
in  seeking  different  forums  in  other  States;  or  the  celerity  by 
which  in  such  States  judgments  of  divorce  might  be  procured, 
would  have  to  be  considered  in  order  to  decide  which  forum 
was  controlhng.  Granting  this  to  be  the  case,  does  not  every 
plea  of  res  adjudicata  presuppose  a  prior  judgment,  and  is  it  a 
defense  to  such  plea  that  such  judgment  was  obtained  by  su- 
periority in  a  race  of  diligence?  The  whole  doctrine  is  founded, 
if  not  upon  the  doctrine  of  superior  diligence,  at  least  upon  the 
theory  of  a  prior  judgment,  which  fixes  irrevocably  the  rights 
of  the  parties,  whenever  and  wherever  these  rights  may  come  in 
question.  Nor  is  the  rule  less  operative  where  suits  are  in 
different  States  and  the  laws  applicable  to  the  questions  therein 
arising  are  different.  To  illustrate:  Suppose  a  note  and  mort- 
gage were  given  for  usurious  interest,  and  the  mortgage  was 
sought  to  be  foreclosed  in  a  State  where,  by  statute,  usury 
[516] 


HADDOCK   V.   HADDOCK 

would  invalidate  both  principal  and  interest,  and  a  decree  were 
obtained  dismissing  the  bill,  can  it  be  doubted  that  if  the  note 
were  sued  upon  in  another  State  where  usury  did  not  invaHdate 
the  security  the  plea  of  res  adjudicata  would  be  sustained  upon 
the  ground  that  the  rights  of  the  parties  had  been  definitely 
fixed  in  the  suit  for  the  foreclosure  of  the  mortgage?  It  seems 
to  me  the  same  rule  appHes  in  this  case.  So  long  as  no  proceed- 
ings are  taken,  the  marriage  would  remain  valid  both  by  the 
laws  of  Connecticut  and  of  New  York.  But  if  a  suit  be  insti- 
tuted by  either  party,  by  the  husband  for  a  divorce  or  by  the 
"wife  for  a  maintenance,  and  the  question  of  marriage  or  no 
marriage  be  made  an  issue,  and  decided  in  the  case  first  brought, 
that  decree  is  forever  binding  upon  both  parties.  Had  the  wife 
in  this  case  brought  suit  to  dissolve  the  marriage,  or  for  a  main- 
tenance in  affirmation  of  the  marriage,  the  decree  of  the  court 
in  New  York  would  have  been  as  binding  upon  the  court  in 
Connecticut  as  the  decree  obtained  in  Connecticut  ought  to  be 
upon  the  wife  in  New  York. 

The  cases  in  the  State  courts,  with  a  few  exceptions,  herein- 
after noted,  overwhelmingly  preponderate  in  holding  that  where 
the  plaintiff  has  acquired  a  bona  fide  domicil  in  a  particular 
State  he  may  lawfully  appeal  to  the  courts  of  that  State  for 
a  dissolution  of  the  marriage  tie,  for  the  causes  permitted  by 
its  statutes,  and  may  call  in  the  non-resident  defendant  by 
publication.  To  abstract  all  these  cases  would  unduly  pro- 
long this  opinion. 

In  many  of  them  the  fuU  faith  and  credit  clause  of  the  Con- 
stitution does  not  seem  to  have  been  called  to  the  attention  of 
the  court,  and  the  case  was  disposed  of  upon  principles  of  com- 
ity, which  give  to  the  court  a  certain  latitude  of  discretion, 
whereas,  under  the  full  faith  and  credit  clause,  the  considera- 
tion given  to  a  decree  in  the  State  where  it  is  rendered  is  oblig- 
atory in  every  other  State. 

One  of  the  earhest  of  these  cases  is  that  of  Harding  v.  Alden, 
9  Maine,  140,  in  wliich  the  parties  separated,  the  husband  going 

[517] 


THE   LAW  OF  MARRIAGE   AND   DIVORCE 

to  North  Carolina  and  the  wife  to  Rhode  Island.  She  began 
proceedings  there,  wliich  culminated  in  a  divorce  for  adultery 
committed  in  North  CaroHna,  the  husband  having  been  person- 
ally cited  to  appear,  but  refusing  to  do  so.  The  divorce  was 
held  to  be  vahd,  the  court  observing  that  "the  protection  of 
innocent  parties  and  the  purity  of  pubhc  morals  require  that 
divorces  lawfully  pronounced  in  one  jurisdiction,  and  the  new 
relations  thereupon  formed,  should  be  recognized  as  operative 
and  binding  everywhere, "  in  the  absence  of  fraud  or  collusion. 
The  ruling  was  that  the  wife  was  entitled  to  dower  in  lands  of 
which  the  husband  was  seized  during  coverture,  the  statute 
expressly  giving  the  right  where  divorce  was  decreed  for  the 
cause  of  adultery,  as  if  the  husband  were  dead. 

In  Barber  v.  Root,  10  Massachusetts,  260,  the  parties  origi- 
nally domiciled  in  Massachusetts  removed  to  Vermont,  and  es- 
tabhshed  a  permanent  domicil  there.  The  court,  while  repu- 
diating the  idea  that  a  chvorce  could  be  granted  to  a  person 
who  was  not  domiciled  in  Vermont,  held  the  divorce  to  be 
good. 

In  Hood  V.  Hood,  11  Allen,  196,  a  divorce  obtained  in  IlUnois 
by  the  husband  for  desertion,  upon  notice  by  publication  in  a 
newspaper,  was  held  to  be  vaUd  as  against  the  wife,  although 
she  was  then  Hving  in  Massachusetts  under  an  agreement  on 
his  part  to  pay  her  a  certain  sum  per  week;  and  although  she 
had  no  actual  notice  of  the  proceedings,  and  was  not  in  lUinois 
during  the  pendency  thereof.  It  was  further  held  that  she 
could  not,  in  a  hbel  for  divorce  brought  by  her  in  Massachusetts, 
offer  evidence  that  the  Ilhnois  decree  was  obtained  by  fraud, 
and  upon  facts  which  would  not  entitle  her  to  a  divorce  in 
Massachusetts.  In  a  subsequent  case  between  the  same  par- 
ties, 110  Massachusetts,  463,  the  court  again  decided  that  the 
Ilhnois  decree  could  not  be  impeached,  and  that  she  was  not 
entitled  to  dower  in  any  lands  of  which  the  husband  was  seized 
during  the  coverture. 

The  whole  subject  was  very  carefully  considered  in  Burlen 
[518] 


HADDOCK   V.    HADDOCK 

V.  Shannon,  115  Massachusetts,  438,  which  was  an  action 
against  the  husband  for  board  furnished  the  wife.  The  hus- 
band, whose  wife  was  living  apart  from  him  without  justifiable 
cause,  removed  to  Indiana,  acquired  a  domicil  there  and  ob- 
tained a  decree  of  divorce  by  pubhcation,  and  by  leaving  a 
summons  at  her  abode  in  ^lassachusetts.  The  divorce  was  held 
to  be  vaUd  in  Massachusetts  as  to  all  persons,  although  the  wife 
had  never  been  in  IncUana,  never  appeared  in  the  suit  there, 
had  no  knowledge  that  her  husband  contemplated  going  to  that 
State,  or  had  left  Massachusetts,  until  after  he  had  filed  his 
libel  for  divorce.  The  authorities  are  reviewed  by  Mr.  Justice 
Gray,  and  the  conclusion  reached  that  the  divorce  in  Indiana 
was  vaHd. 

Cummington  v.  Belchertown,  149  Massachusetts,  123,  was  an 
action  to  recover  expenses  incurred  by  the  plaintiff  for  the 
support  of  an  insane  pauper.  The  husband  had  removed  to 
another  State  and  procured  a  decree  annulhng  the  marriage 
on  the  ground  of  fraud  in  conceaHng  from  him  the  fact  of  in- 
sanity before  their  marriage.  Notice  of  the  proceedings  was 
served  upon  her,  but  she  was  not  represented,  and  it  was  held 
that  the  decree  was  insufficient  to  annul  her  marriage  in  Mass- 
achusetts. It  was  held,  under  the  famihar  rule  that  the  ju- 
risdiction of  the  foreign  court  may  be  inquired  into,  that  the 
wife,  when  the  proceedings  were  commenced  and  concluded 
was  utterly  insane,  and  that  the  record  of  the  New  York  courts 
showed  her  to  have  been  so,  and  that  no  guardian  was  ap- 
pointed. The  case  was  disposed  of  as  one  over  which  the  New 
York  court  had  acquired  no  jurisdiction.  It  does  not  qualify 
in  any  way  the  previous  case  of  Burlen  v.  Shannon. 

The  case  of  Ditson  v.  Ditson,  4  R.  I.  87,  is  directly  in  point, 
and  I  understand  it  to  be  so  admitted.  It  was  held  that  a 
divorce  in  Rhode  Island  on  the  ground  of  desertion  was  vahd, 
though  the  husband  had  never  been  within  the  jurisdiction  of 
Rhode  Island,  and  only  constructive  notice  of  the  pendency 
of  the  petition  had  been  given  him. 

[519] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE 

The  rule  in  Kentucky  is  settled  in  Rhyms  v.  Rhyms,  7  Bush. 
316,  in  wliich  a  wife  proceeded  against  her  husband  as  a  non- 
resident by  a  warning  order,  and  it  was  held  that  the  court  liad 
jurisdiction  to  grant  her  a  divorce.  Chief  Justice  Robertson 
remarking:  ''It  would  be  a  reproach  to  our  legislation  if  a 
faithless  husband  in  Kentucky  could,  by  leaving  the  State,  de- 
prive his  abandoned  wife  of  the  power  to  obtain  a  divorce  at 
home."  In  HmvJdns  v.  Ragsdale,  80  Kentucky,  353,  it  was 
held  that  a  divorce  obtained  by  the  husband  in  Indiana  by 
constructive  service  determined  the  status  of  the  party  in  Ken- 
tucky, and  that  under  the  statutes  of  that  State  it  barred  all 
claim  to  curtesy  or  dower  in  Kentucky  lands.  To  the  same 
effect  is  Purzel  v.  Purzel,  91  Kentucky,  634. 

The  law  of  Cahfornia  is  settled  in  In  re  Newman,  75  Cahfor- 
nia,  213,  to  the  effect  that  a  suit  for  divorce,  so  far  as  it  affects 
the  status  of  the  parties  and  the  custody  of  their  children,  is 
a  proceeding  in  rem,  and  service  by  publication  on  a  non- 
resident defendant  is  good.  This  ruhng  was  repeated  in  In  re 
James,  99  California,  374,  where  it  is  declared  that  such  decree 
is  equally  valid  in  other  States. 

Nowhere  is  the  rule  more  strongly  asserted  than  in  Tennessee, 
where  a  decree  obtained  in  Illinois  by  pubhcation  was  sustained 
in  Thorns  v.  King,  95  Tennessee,  60,  and  where  it  seems  to 
have  been  held  that  the  decree  could  not  be  impeached,  even 
by  showing  the  absence  of  necessary  residence. 

In  Cooper  v.  Cooper,  7  Ohio  St.  238,  it  was  held  that  a  di- 
vorce granted  in  Indiana  precluded  an  application  for  a  divorce 
and  alimony  in  Ohio.  In  Cox  v.  Cox,  19  Ohio  St.  502,  the  va- 
lidity of  a  foreign  decree  of  divorce  obtained  by  constructive 
service,  except  so  far  as  regarded  the  question  of  ahmony,  was 
sustained.  The  same  ruling  was  made  in  Doerr  v.  Forsijthe,  50 
Ohio  St.  726,  holding  that  while  the  Indiana  divorce  was  good, 
it  did  not  affect  the  property  rights  of  the  wife  in  the  State  of 
Ohio. 

The  rule  in  Missouri  is  stated  in  Gould  v.  Crow,  57  Missouri, 
[520] 


HADDOCK   V.   HADDOCK 

200,  that  a  divorce  regularly  obtained  by  the  husband  in  In- 
diana on  an  order  of  publication  operates  as  a  divorce  in  liis 
favor  in  Missouri,  so  as  to  prevent  liis  wdfe  from  claiming  dower 
in  lands  owned  by  him  in  that  State.  The  decree  so  pro- 
nounced is  a  judgment  in  rem  and  is  vahd  everywhere  under 
the  Constitution  and  laws  of  the  United  States.  A  Uke  ruling 
was  made  in  Anthony  v.  Rice,  110  ^lissouri,  223. 

The  law  in  Kansas  is  settled  in  Rodgers  v.  Rodgers,  56  Kan- 
sas, 483,  to  the  effect  that  the  courts  of  a  sister  State  may  dis- 
solve a  marriage  relation  between  a  husband  domiciled  there 
and  a  wife  domiciled  in  Kansas,  by  pubHcation,  although  un- 
known to  her;  but  that  such  courts  have  no  power  to  settle 
the  title  of  lands  in  Kansas  or  control  the  custody  of  children 
residing  there.  But  it  was  also  decided  in  Chipman  v.  Chip- 
man,  48  Kansas,  636,  that  a  wife  having  obtained  a  divorce  in 
Ohio  upon  service  by  publication,  was  not  entitled  to  dower  in 
lands  in  Kansas  fraudulently  conveyed  by  her  husband  in 
fraud  of  her  or  others. 

In  Smith  v.  Smith,  43  La.  Ann.  1140,  it  is  held  that  a  wife 
may  acquire  a  separate  domicil  from  that  of  her  husband  where 
his  conduct  has  been  such  as  to  furnish  ground  for  divorce,  and 
her  marriage  status  becomes  subject  to  the  juriscUction  of  that 
domicil,  and  that  the  courts  thereof  may  grant  a  divorce  upon 
actual  or  constructive  notice.  The  rights  of  the  Louisiana 
courts  to  decree  a  divorce  against  an  absentee  by  means  of 
substituted  ser\'ice  is  again  affirmed  in  Butler  v.  Washington, 
45  La.  Ann.  279. 

The  law  of  Wisconsin  is  the  same.  Shajer  v.  Bushnell,  24 
Wisconsin,  372;  Cook  v.  Cook,  56  Wisconsin,  195,  though  in 
the  latter  case  the  right  of  the  wife  to  an  interest  in  her  hus- 
band's lands  in  Wisconsin  was  preserved. 

In  Thompson  v.  State,  28  Alabama,  12,  the  right  of  the  hus- 
band to  emigrate  and  acquire  a  new  domicil  and  procure  a 
divorce  upon  pubhcation  in  the  State  of  his  domicil,  was  also 
affirmed.     See  also  Turner  v.  Turner,  44  Alabama,  437.     In 

[  521  ] 


THE   LAW  OF   MARRIAGE   AND   DIVORCE 

the  latter  case  it  is  indicated  that  a  foreign  divorce  did  not 
settle  the  rights  of  the  wife  to  dower  in  his  lands,  or  any  other 
interests  of  a  pecuniary  character. 

In  Kline  v.  Kline,  57  Iowa,  386,  a  decree  rendered  in  another 
State  on  service  by  pubHcation  was  recognized,  except  so  far 
as  it  attempted  to  fix  the  custody  of  the  minor  children.  In 
Van  Orsdale  v.  Van  Orsdale,  67  Iowa,  35,  the  property  rights  of 
the  wife  were  recognized,  but  this  right  was  limited  to  prop- 
erty within  the  State,  and  which  the  husband  owned  at  the 
time  of  the  divorce,  and  not  to  what  he  subsequently  acquired" 
In  this  case  it  was  said:  ''The  divorce  was  granted  in  May, 
1880.  In  November,  1881,  the  defendant's  father  died  in 
this  State,  possessed  of  certain  property  which  the  defend- 
ant inherited.  Now,  while  it  may  be  that  the  plaintiff  might 
be  entitled  to  ahmony  if  the  defendant  had  owned  property  in 
the  State  at  the  time  the  divorce  was  procured  in  Nebraska, 
she  cannot  be  so  entitled  because  he  has  subsequently  acquired 
property.  The  plaintiff,  if  entitled  to  alimony,  was  so  entitled 
at  the  time  the  divorce  was  granted.  The  relation  of  the  hus- 
band and  wife  then  ceased,  and  neither  party  is  entitled  to  any 
share  or  interest  in  property  which  may  be  subsequently 
acquired. " 

In  Indiana  the  right  of  a  wife  domiciled  there  to  a  divorce 
against  the  husband  who  never  resided  in  that  State,  and  upon 
whom  service  was  only  obtained  by  pubUcation,  is  recognized 
in  Tolen  v.  Tolen,  2  Blackford  407;  Hood  v.  State,  56  Indiana, 
263,  and  in  Hilbish  v.  Hattle,  145  Indiana,  59,  it  was  held  that 
the  wife  had  no  rights  in  liis  property  by  virtue  of  her  mar- 
riage relations  with  the  husband,  though  the  court  chd  not  in 
the  divorce  proceedings  adjudicate  the  property  rights  of  the 
parties. 

In  Garner  v.  Gamer,  56  Maryland,  127,  the  power  to  grant  a 
divorce  against  a  non-resident,  upon  whom  process  had  not 
been  served,  was  recognized,  but  the  right  to  a  decree  that  the 
non-resident  should  not  marry  again  was  denied. 
[  522  ] 


HADDOCK  V.   HADDOCK 

In  Thurston  v.  Thurston,  58  Minnesota,  279,  the  divorce  was 
recognized,  though  process  was  served  outside  of  the  State, 
But  it  was  held  that  the  question  of  aUmony  was  not  res  ad- 
judicata  by  reason  of  the  judgment.  The  wife  was  allowed 
alimony  out  of  property  in  Minnesota. 

The  validity  of  foreign  cUvorces  obtained  without  personal 
service  is  recognized  in  Illinois,  in  Knowlton  v.  Knowlton,  155 
Illinois,  158,  and  in  Dunham  v,  Dunham,  162  lUinois,  589. 

The  law  in  New  Jersey  appeared  at  one  time  to  favor  the 
contention  of  the  wife  in  this  case.  The  gist  of  the  decisions 
seemed  to  be  that  a  foreign  decree  is  enforceable  in  another  State 
only  on  the  ground  of  comity.  This  was  incUcated  in  Doughty 
v.  Doughty,  28  N.  J.  Eq.  581,  though  the  decree  in  that  case 
was  held  to  have  been  obtained  by  fraud.  It  was  admitted 
that  the  decree  obtained  by  the  husband  in  Ilhnois  was  lawful 
and  binding  there,  but  it  was  held  that  it  did  not  change  the 
status  of  the  wife  in  New  Jersey,  her  citizenship  there  being  ad- 
mitted. The  case  was  properly  decided  on  the  ground  that  the 
husband  went  to  Illinois  to  obtain  a  divorce,  and  acquired  no 
bona  fide  domicil  there.  The  same  rule  was  recognized  in 
Flower  v.  Flower,  42  N.  J.  Eq.  152,  These  cases,  however, 
seem  to  have  been  overruled  in  Felt  v.  Felt,  59  N.  J.  Eq.  606, 
where  it  was  held  that  the  domicil  of  the  complainant  in  a  for- 
eign State  was  sufficient  to  give  jurisdiction,  notwithstanding 
the  defendant  had  not  been  served  with  process  there.  The 
Chief  Justice  remarked  in  this  case:  "A  concUtion  of  the  law 
which  makes  the  intercourse  of  a  man  and  woman  either  le- 
gitimate or  adulterous  as  they  happen  to  be  within  the  hmits 
of  one  State  or  another  is  not  to  be  tolerated  any  further  than 
is  plainly  required  by  pubHc  policy. "  This  case  evidently  puts 
New  Jersey  in  Une  with  the  vast  majority  of  other  States. 

The  cases  of  New  York  upon  this  subject  are  numerous  and 
perhaps  not  wholly  reconcilable,  but  we  think  that  the  law,  as 
summarized  in  the  last  case  of  Winston  v,  Winston,  165  N.  Y. 
553,  is  adverse  to  the  validity  of  a  divorce  obtained  in  another 

[523] 


THE  LAW  OF  MARRIAGE  AND  DIVORCE 

State  without  service  of  process  within  the  jurisdiction.  Of 
the  same  tenor  are  the  cases  in  Pennsylvania:  Colvin  v.  Reed, 
55  Pa.  St.  375;  Reel  v.  Elder,  62  Pa.  St.  308.  North  Carolina: 
Irby  V.  Wilson,  1  Dev.  &  Bat.  Eq.  568;  Harris  v.  Harris,  115 
N.  Car.  587.  South  CaroUna:  McCreery  v.  Davis,  44  S.  Car. 
195. 

■  The  law  in  this  country  then  may  be  summarized  as  follows: 
In  Maine,  Massachusetts,  Rhode  Island,  Kentucky,  California, 
Tennessee,  Ohio,  Missouri,  Kansas,  Louisiana,  Wisconsin,  Ala- 
bama, Iowa,  Indiana,  Maryland,  Minnesota,  Illinois  and  New 
Jersey,  the  vahdity  of  a  divorce  obtained  in  another  State  by 
a  party  there  domiciled  in  a  proceeding  where  constructive 
service  upon  the  defendant  only  is  obtained,  is  fuUy  recognized. 
In  Ohio,  Iowa  and  Minnesota,  and  perhaps  also  Louisiana  and 
Alabama,  her  right  to  ahmony  and  to  dower  is  preserved.  But 
the  very  cases  which  Uinit  the  effect  of  the  divorce,  so  far  as 
property  rights  are  concerned,  restrict  such  rights  to  dower  in 
lands  of  which  the  husband  was  seized  during  coverture,  and 
inferentially  at  least  to  alimony  from  such  property.  It  is  also 
limited  to  property  within  the  State  where  suit  is  brought. 
That  her  rights  in  her  husband's  property  should  extend  to 
property  acquired  by  him  long  after  the  divorce  is  nowhere 
indicated. 

The  only  States  in  which  it  is  held  that  a  party  domiciled  in 
another  State  may  not  obtain  a  divorce  there  by  constructive 
service  are  New  York,  Pennsylvania,  North  and  South  Caro- 
lina. 

A  proceeding  for  divorce  is  a  suit  in  rem,  with  which  is  often 
incorporated  a  suit  in  personam.  The  res  is  aptly  stated  in 
Ellis  V.  Martin,  53  Missouri,  575,  as  "  the  status  of  the  plaintiff 
in  relation  to  the  defendant  to  be  acted  on  by  the  court.  This 
relation  being  before  the  court  in  the  person  of  the  plaintiff,  the 
court  acts  on  it,  and  dissolves  it  by  a  judgment  of  divorce." 
The  fact  subsequently  ascertained,  that  it  may  have  been  pro- 
cured by  fraud  or  false  testimony,  is  wholly  beside  the  ques- 
[524] 


HADDOCK   V.   HADDOCK 

tion,  as  we  shall  hereafter  show.  The  fact  that  the  husband 
changed  his  domicil  to  another  State,  after  the  cause  of  action 
arose,  is  also  immaterial.  The  status  of  the  husband  in  this  case 
was  irrevocably  fixed  by  the  decree.  It  is  unnecessary  to  con- 
sider how  far  it  affected  the  status  of  the  wife  in  New  York, 
which,  in  respect  to  other  questions,  may  be  subject  to  the 
local  law;  but  her  relations  as  against  her  husband  are  con- 
trolled by  the  decree  wMch  fixed  his  status.  Indeed,  it  would 
be  a  reproach  to  our  jurisprudence  if  an  injured  party  residing 
in  one  State  could  not  obtain  a  decree  from  the  other  party, 
without  pursuing  the  offending  party  into  another  and  distant 
State,  where  he  or  she  may  have  chosen  to  estabUsh  a  domicil. 

In  this  case  the  referee  reported  that  the  defendant  aban- 
doned the  plaintiff  without  cause  or  justification.  An  excep- 
tion was  taken  to  this  report,  and  the  testimony  was  sent  up, 
which  shows  that  the  parties  separated  on  the  day  of  their 
marriage  and  have  never  lived  together  since.  The  testimony 
leaves  it  doubtful  whether  it  was  a  case  of  abandonment  or 
of  separation  by  mutual  consent.  It  does,  however,  show  that 
plaintiff  took  no  steps  to  assert  her  marital  rights  for  twenty - 
six  years  after  her  marriage.  Her  husband  having  in  the  mean- 
time inherited  a  large  amount  of  property  from  his  father,  she 
began  suit  for  divorce  a  mensa  et  thoro  and  an  allowance  of 
alimony.  This  suit,  however,  was  ineffectual  so  far  as  respects 
the  alimony,  as  no  personal  service  was  obtained.  She  waited 
again  for  five  years  and  began  this  proceeding  both  for  a  sep- 
aration, which  she  had  already  obtained,  and  for  ahmony. 

We  think  the  defendant  may  lawfully  reply  thus:  "You are 
pursuing  me  as  your  husband  for  a  separation  de  jure  which  has 
existed  for  thirty-one  3'ears  de  facto,  and  since  1894  de  jure, 
and  for  an  ahmony  which  is  obviously  the  sole  object  of  your 
proceeding.  Your  only  claim  against  me  is  as  your  husband. 
I  am  not  your  husband.  Twenty-three  years  ago  the  Superior 
Court  of  Litchfield  County,  Connecticut,  in  which  State  I  had 
an  actual  and  bona  fide  domicil,  and  which  had  had  sole  juris- 

[  525  ] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE 

diction  over  my  marital  status  for  twelve  years,  liberated  me 
from  the  bonds  of  matrimony  and  pronounced  me  a  free  man. 
In  the  meantime  I  have  married  another  woman,  and  if  your 
position  be  a  sound  one,  I  am,  at  least  in  the  State  of  New  York, 
a  bigamist,  and  my  wife  an  adulteress. "  It  is  difficult  to  con- 
ceive of  a  case  calhng  more  loudly  for  the  apphcation  of  the 
general  doctrine. 

As  no  question  is  made  as  to  the  validity  of  the  Connecticut 
decree  and  its  legal  effect  in  that  State,  and  as  this  court  has 
repeatedly  decided  that,  under  the  full  faith  and  credit  clause 
of  the  Constitution,  a  judgment  conclusive  in  the  State  where 
it  is  rendered  is  equally  conclusive  everywhere  in  the  courts  of 
the  United  States,  Cheever  v.  Wilson,  9  Wall.  108;  Mill  v. 
Duryea,  7  Cranch,  483;  D'Arcy  v.  Ketchum,  11  How.  165,  I  do 
not  understand  how  this  decree  can  be  denied  the  same  effect 
in  New  York  that  it  has  in  Connecticut  without  disregarding 
the  constitutional  provision  in  question.  The  result  is  that 
the  husband,  freed  from  the  bonds  of  matrimony  in  Connecti- 
cut, was  at  Hberty  to  contract  another  marriage  there,  while 
the  wife  cannot  even  at  this  late  day  contract  another  marriage 
in  New  York  without  being  guilty  of  adultery. 

3.  It  is  insisted,  however,  that  the  decree  of  the  Connecticut 
court  was  obtained  by  the  fraud  of  Haddock,  in  stating  in  his 
complaint  that  his  wife  had  deserted  him,  when,  in  the  present 
case,  it  appears  from  his  own  testimony  that  he,  in  fact,  aban- 
doned and  refused  to  Uve  with  her,  or  that  they  separated  by 
mutual  consent. 

The  evidence  upon  which  the  Connecticut  decree  was  granted 
does  not  appear  in  the  record,  and  it  is  possible  that  the  case 
was  made  out  by  the  testimony  of  other  witnesses.  But,  how- 
ever that  may  be,  this  decree  cannot  be  impeached  by  evi- 
dence that  it  was  obtained  by  false  testimony,  even  though  it 
be  testimony  of  the  plaintiff  in  that  proceeding  and  the  de- 
fendant in  this.  Hood  v.  Hood,  11  Allen,  196,  in  which  it  was 
held  that  ''both  parties  had  their  domicil  in  Ilhnois,  and  were 
[526] 


HADDOCK   V.   HADDOCK 

subject  to  the  jurisdiction  of  its  courts,  and  that  the  fact  of 
desertion  by  the  wife  was  conclusively  settled  between  the 
parties  by  the  decree  in  Illinois,  and  it  was  not  competent  for 
the  wife  to  contradict  it  on  a  hbel  filed  by  her  afterwards  in 
Massachusetts."     See  same  case,  110  Massachusetts,  463. 

The  rule  is  well  settled  that  wliile  a  judgment  or  decree  may 
sometimes  be  impeached  for  fraud,  it  can  only  be  for  a  fraud 
extrinsic  to  the  cause — as,  that  the  judgment  was  collusively  ob- 
tained to  defraud  some  other  person,  and  that  it  cannot  be 
impeached  by  either  of  the  parties  thereto  by  reason  of  false 
testimony  given  at  the  time,  or  which  must  have  been  given 
to  estabhsh  the  plaintiff's  case,  or  even  by  perjury  of  one  of  the 
parties  thereto.  Granting  that  the  testimony  shows  the  ab- 
sence of  good  faith,  and  even  perjury,  on  the  part  of  the  hus- 
band in  the  Connecticut  suit,  the  decree  cannot  be  opened  for 
that  reason,  or  for  any  reason,  which  would  not  logically  involve 
a  reexamination  of  the  entire  facts  upon  wliich  the  decree  is 
obtained.  Christmas  v.  Russell,  5  Wall.  290;  United  States  v. 
Throckmorton,  98  U.  S.  61;  Sims  v.  Slocum,  3  Cranch,  300; 
Ammidon  v.  Smith,  1  Wheat.  447;  Smith  v.  Lewis,  3  Johns.  157; 
Marriott  v.  Hampton,  7  T.  R.  265;  Demerit  v.  Lyford,  7  Fos- 
ter, 541,  546;  Peck  v.  Woodbridge,  3  Day,  30;  Dilling  v.  Mur- 
ray,  6  Indiana,  324;  Homer  v.  Fish,  1  Pick.  435;  Lewis  v. 
Rogers,  16  Pa.  St.  18;  Sidensparker  v.  Sidensparker,  52  Maine, 
481;  B.  &  W.  R.  R.  Company  v.  Sparhawk,  1  Allen,  448;  Dam- 
port  V.  Sympson,  Croke,  Ehz'bth,  520;  Eyres  v.  Sedgwicke, 
Croke,  James,  601;  Mason  v.  Messenger,  17  Iowa,  261,  272; 
Walker  v.  Ames,  2  Connecticut,  488 ;  White  v.  Merritt,  7  N.  Y.  352. 

When  it  is  considered  that  the  status  of  the  defendant  was 
fixed  by  the  decree  of  the  Connecticut  court  in  1881,  in  a  pro- 
ceeding of  which  his  wife  had  due  notice,  that  upon  the  faith 
of  this  decree  he  remarried  the  follomng  year,  and  that  the 
plaintiff  made  no  move  to  establish  her  conjugal  rights  for  thir- 
teen years  thereafter,  and  for  twenty-six  years  after  her  mar- 
riage, the  injustice  of  holding  all  these  proceedings  to  be  null 

[527] 


THE   LAW   OF  MARRIAGE   AND   DIVORCE 

and  void,  even  upon  the  assumption  of  perjury  committed  by 
the  defendant,  becomes  the  more  manifest.  We  tliink  that 
at  least  the  record  should  have  been  received. 

I  regret  that  the  court  in  this  case  has  taken  what  seems  to 
me  a  step  backward  in  American  jurisprudence,  and  has  vir- 
tually returned  to  the  old  doctrine  of  comity,  which  it  was  the 
very  object  of  the  full  faith  and  credit  clause  of  the  Constitu- 
tion to  supersede. 

Mr.  Justice  Holmes,  with  whom  concurred  Mr.  Justice 
Harlan,  Mr.  Justice  Brewer  and  Mr.  Justice  Brown,  dis- 
senting. 

I  do  not  suppose  that  civilization  will  come  to  an  end  which- 
ever way  this  case  is  decided.     But  as  the  reasoning  which  pre- 
vails in  the  mind  of  the  majority  does  not  convince  me,  and  as 
I  think  that  the  decision  not  only  reverses  a  previous  well- 
considered  decision  of  this  court  but  is  likely  to  cause  consid- 
erable disaster  to  innocent  persons  and  to  bastardize  children 
hitherto  supposed  to  be  the  offspring  of  lawful  marriage,  I 
think  it  proper  to  express  my  views.     Generally  stated,  the 
issue  is  whether,  when  a  husband  sues  in  the  court  of  his  dom- 
icil  for  divorce  from  an  absent  wife  on  the  ground  of  her  deser- 
tion, the  jurisdiction  of  the  court,  if  there  is  no  personal  serv- 
ice, depends  upon  the  merits  of  the  case.     If  the  wife  did  desert 
her  husband  in  fact,  or  if  she  was  served  with  process,  I  under- 
stand it  not  to  be  disputed  that  a  decree  of  divorce  in  the  case 
supposed  would  be  conclusive,  and  so  I  understand  it  to  be 
admitted  that  if  the  court  of  another  State  on  a  retrial  of  the 
merits  finds  them  to  have  been  decided  rightly  its  duty  will  be 
to  declare  the  decree  a  bar  to  its  inquiry.     The  first  form  of  the 
question  is  whether  it  has  a  right  to  inquire  into  the  merits  at 
all.    But  I  think  that  it  will  appear  directly  that  the  issue  is 
narrower  even  than  that. 

In  Atherton  v.  Atherton,  181  U.  S.  155,  a  divorce  was  granted, 
on  the  ground  of  desertion,  to  a  husband  in  Kentucky  against 
[528] 


HADDOCK    V.    HADDOCK 

a  wdfe  who  had  estabhshed  herself  in  New  York.  She  did  not 
appear  in  the  suit  and  the  only  notice  to  her  was  by  mail. 
Before  the  decree  was  made  she  sued  in  New  York  for  a  divorce 
from  bed  and  board,  but  pending  the  latter  proceedings  the 
Kentucky  suit  was  brought  to  its  end.  The  husband  appeared 
in  New  York  and  set  up  the  Kentucky  decree.  The  New  York 
court  found  that  the  wife  left  her  husband  because  of  his  cruel 
and  abusive  treatment,  without  fault  on  her  part,  held  that  the 
Kentucky  decree  was  no  bar  and  granted  the  wife  her  divorce 
from  bed  and  board.  The  New  York  decree,  after  being  af- 
firmed by  the  Court  of  Appeals,  was  reversed  by  this  court  on 
the  ground  that  it  did  not  give  to  the  Kentucky  decree  the  faith 
and  credit  which  it  had  by  law  in  Kentucky.  Of  course,  if  the 
wife  left  her  husband  because  of  his  cruelty  and  without  fault 
on  her  part,  as  found  by  the  New  York  court,  she  was  not 
guilty  of  desertion.  Yet  this  court  held  that  the  question  of 
her  desertion  was  not  open  but  was  conclusively  settled  by  the 
Kentucky  decree. 

There  is  no  difference,  so  far  as  I  can  see,  between  Atherton 
v.  Atherton  and  the  present  case,  except  that  in  Atherton  v. 
Atherton  the  forum  of  the  first  decree  was  that  of  the  matrimo- 
nial domicil,  whereas  in  this  the  court  was  that  of  a  domicil 
afterwards  acquired.  After  that  decision  any  general  objec- 
tion to  the  effect  of  the  Connecticut  decree  on  the  ground  of 
the  wife's  absence  from  the  State  comes  too  late.  So  does  any 
general  objection  on  the  ground  that  to  give  it  effect  invites  a 
race  of  diligence.  I  therefore  pass  such  arguments  without 
discussion,  although  they  seem  to  me  easy  to  answer.  More- 
over, Atherton  v.  Atherton  decides  that  the  jurisdiction  of  the 
matrimonial  domicil,  at  least,  to  grant  a  divorce  for  the  wife's 
desertion  without  personal  service,  does  not  depend  upon  the 
fact  of  her  desertion,  but  continues  even  if  her  husband's 
cruelty  has  driven  her  out  of  the  State  and  she  has  acquired  a 
separate  domicil  elsewhere  upon  the  principles  which  we  all 
agree  are  recognized  by  this  court. 

34  [529] 


THE   LAW   OF   MARRIAGE   AND    DIVORCE. 

I  can  see  no  ground  for  giving  a  less  effect  to  the  decree  when 
the  husband  changes  his  domicil  after  the  separation  has  taken 
place.  The  question  whether  such  a  decree  should  have  a  less 
effect  is  the  only  question  open,  and  the  issue  is  narrowed  to 
that.  No  one  denies  that  the  husband  may  sue  for  divorce  in 
his  new  domicil,  or,  as  I  have  said,  that  if  he  gets  a  decree  when 
he  really  has  been  deserted,  it  will  be  binding  every^vhere. 
Hawkins  v.  Ragsdale,  80  Kentucky,  353,  cited  181  U.  S.  162. 
Cheely  v.  Clayton,  110  U.  S.  701,  705.  It  is  unnecessary  to  add 
more  cases.  The  only  reason  which  I  have  heard  suggested 
for  holding  the  decree  not  binding  as  to  the  fact  that  he  was 
deserted,  is  that  if  he  is  deserted  his  power  over  the  matrimo- 
nial domicil  remains  so  that  the  domicil  of  the  wife  accompanies 
him  wherever  he  goes,  whereas  if  he  is  the  deserter  he  has  no 
such  power.  Of  course  this  is  a  pure  fiction,  and  fiction  always 
is  a  poor  ground  for  changing  substantial  rights.  It  seems  to  me 
also  an  inadequate  fiction^  since  by  the  same  principle,  if  he 
deserts  her  in  the  matrimonial  domicil,  he  is  equally  powerless 
to  keep  her  domicil  there,  if  she  moves  into  another  State.  The 
truth  is  that  jurisdiction  no  more  depends  upon  both  parties 
having  their  domicil  within  the  State,  than  it  does  upon  the 
presence  of  the  defendant  there,  as  is  shown  not  only  by  Ath- 
erton  v.  Atherton,  but  by  the  rights  of  the  wife  in  the  matri- 
monial domicil  when  the  husband  deserts. 

There  is  no  question  that  a  husband  may  establish  a  new 
domicil  for  himself,  even  if  he  has  deserted  his  wife.  Yet  in 
these  days  of  equality  I  do  not  suppose  that  it  would  be  doubted 
that  the  jurisdiction  of  the  court  of  the  matrimonial  domicil  to 
grant  a  divorce  for  the  desertion  remained  for  her,  as  it  would 
for  him  in  the  converse  case.  See  Cheever  v.  Wilson,  9  Wall.  108. 
Indeed  in  Ditson  v.  Ditson,  4  R.  I.  87,  which,  after  a  quotation 
of  Judge  Cooley's  praise  of  it,  is  stated  and  relied  upon  as  one 
of  the  pillars  for  the  decision  of  Atherton  v.  Atherton,  a  wife 
was  granted  a  divorce,  without  personal  service,  in  the  State  of 
a  domicil  acquired  by  her  after  separation,  on  the  sole  ground 
[530] 


HADDOCK   V.    HADDOCK 

that  in  the  opinion  of  the  court  its  decree  would  be  binding 
everywhere.  If  that  is  the  law  it  disposes  of  the  case  of  a 
husband  under  similar  circumstances,  that  is  to  say  of  the 
present  case,  a  fortiori;  for  I  suppose  that  the  notion  that  a 
wife  can  have  a  separate  domicil  from  her  husband  is  a  modern 
idea.  At  least  Ditson  v.  Ditson  confirms  the  assumption  that 
jurisdiction  is  not  dependent  on  the  wife's  actually  residing  in 
the  same  State  as  her  husband,  which  has  been  established  by 
this  court.  Atherton  v.  Atherton,  181  U.  S.  155;  Maynard  v. 
Hill,  125  U.  S.  190;  Cheever  v.  Wilson,  9  Wall.  108.  When 
that  assumption  is  out  of  the  way,  I  repeat  that  I  cannot  see 
any  ground  for  distinguishing  between  the  extent  of  jurisdic- 
tion in  the  matrimonial  domicil  and  that,  admitted  to  exist  to 
some  extent,  in  a  domicil  later  acquired.  I  also  repeat  and 
emphasize  that  if  the  finding  of  a  second  court,  contrary  to  the 
decree,  that  the  husband  was  the  deserter,  destroys  the  juris- 
diction in  the  later  acquired  domicil  because  the  domicil  of  the 
wife  does  not  follow  his,  the  same  fact  ought  to  destroy  the 
jurisdiction  in  the  matrimonial  domicil  if  in  consequence  of  her 
husband's  conduct  the  wife  has  left  the  State,  But  Atherton 
V.  Atherton  decides  that  it  does  not. 

It  is  important  to  bear  in  mind  that  the  present  decision  pur- 
ports to  respect  and  not  to  overrule  Atherton  v.  Atherton.  For 
that  reason,  among  others,  I  spend  no  time  in  justifying  that 
case.  And  yet  it  appears  to  me  that  the  whole  argument  which 
prevails  with  the  majority  of  the  court  is  simply  an  argument 
that  Atherton  v.  Atherton  is  wrong.  I  have  tried  in  vain  to 
discover  anything  tending  to  show  a  distinction  between  that 
case  and  this.  It  is  true  that  in  Atherton  v.  Atherton,  Mr.  Jus- 
tice Gray  confined  the  decision  to  the  case  before  the  court. 
Evidently,  I  should  say,  from  internal  evidence,  in  deference 
to  scruples  which  he  did  not  share.  But  a  court  by  announcing 
that  its  decision  is  confined  to  the  facts  before  it  does  not  de- 
cide in  advance  that  logic  will  not  drive  it  further  when  new 
facts  arise.    New  facts  have  arisen.    I  state  what  logic  seems 

[531] 


THE    LAW    OF   MARRIAGE    AND    DIVORCE. 

to  me  to  require  if  that  case  is  to  stand,  and  I  think  it  reason- 
able to  ask  for  an  articulate  indication  of  how  it  is  to  be  dis- 
tinguished. 

I  have  heard  it  suggested  that  the  difference  is  one  of  degree. 
I  am  the  last  man  in  the  world  to  quarrel  with  a  distinction 
simply  because  it  is  one  of  degree.  Most  distinctions,  in  my 
opinion,  are  of  that  sort,  and  are  none  the  worse  for  it.  But 
the  line  which  is  drawn  must  be  justified  by  the  fact  that  it  is 
a  little  nearer  than  the  nearest  opposing  case  to  one  pole  of 
an  admitted  antithesis.  When  a  crime  is  made  burglary  by 
the  fact  that  it  was  committed  thirty  seconds  after  one  hour 
after  sunset,  ascertained  according  to  mean  time  in  the  place 
of  the  act,  to  take  an  example  from  Massachusetts  (R.  L.  c.  219, 
§  10),  the  act  is  a  little  nearer  to  midnight  than  if  it  had  been 
committed  one  minute  earlier,  and  no  one  denies  that  there  is 
a  difference  between  night  and  day.  The  fixing  of  a  point  when 
day  ends  is  made  inevitable  by  the  admission  of  that  difference. 
But  I  can  find  no  basis  for  giving  a  greater  jurisdiction  to  the 
courts  of  the  husband's  domicil  when  the  married  pair  happens 
to  have  resided  there  for  a  month,  even  if  with  intent  to  make 
it  a  permanent  abode,  than  if  they  had  not  lived  there  at  all. 

I  may  add,  as  a  consideration  distinct  from  those  which  I 
have  urged,  that  I  am  unable  to  reconcile  with  the  requirements 
of  the  Constitution,  Article  4,  section  1,  the  notion  of  a  judg- 
ment being  valid  and  binding  in  the  State  where  it  is  rendered, 
and  yet  depending  for  recognition  to  the  same  extent  in  other 
States  of  the  Union  upon  the  comity  of  those  States.  No  doubt 
some  color  for  such  a  notion  may  be  found  in  State  decisions. 
State  courts  do  not  always  have  the  Constitution  of  the  United 
States  vividly  present  to  their  minds.  I  am  responsible  for 
language  treating  what  seems  to  me  the  fallacy  as  open,  in 
Blackinton  v.  Blackinton,  141  Massachusetts,  432,  436.  But 
there  is  no  exception  in  the  words  of  the  Constitution.  "If 
the  judgment  is  conclusive  in  the  State  where  it  was  pronounced 
it  is  equally  conclusive  everywhere."  Christmas  v.  Russell,  5 
[  532  ] 


HADDOCK   V.   HADDOCK 

Wall.  290,  302;  Marshall,  C.  J.,  in  Hampton  v.  McConnel,  3 
Wheat.  234;  Mills  v.  Duryee,  7  Cranch,  481,  485;  Story,  Const. 
§  1313.  See  also  Hancock  National  Bank  v.  Farnum,  176  U.  S. 
640,  644,  645.  I  find  no  qualification  of  the  rule  in  Wisconsin 
V.  Pelican  Ins.  Co.,  127  U.  S.  265.  That  merely  decided,  \vith 
regard  to  a  case  not  within  the  words  of  the  Constitution,  that 
a  State  judgment  could  not  be  sued  upon  when  the  facts  which 
it  established  were  not  a  cause  of  action  outside  the  State.  It 
did  not  decide  or  even  remotely  suggest  that  the  judgment 
would  not  be  conclusive  as  to  the  facts  if  in  any  way  those  facts 
came  in  question.  It  is  decided  as  well  as  admitted  that  a 
decree  like  that  rendered  in  Connecticut  in  favor  of  a  deserting 
husband  is  binding  in  the  State  where  it  is  rendered.  May- 
nard  v.  Hill,  125  U.  S.  190.  I  think  it  enough  to  read  that  case 
in  order  to  be  convinced  that  at  that  time  the  court  had  no 
thought  of  the  divorce  being  confined  in  its  effects  to  the  Terri- 
tory where  it  was  granted,  and  enough  to  read  Atherton  v. 
Atherton  to  see  that  its  whole  drift  and  tendency  now  are  re- 
versed and  its  necessary  consequences  denied. 

Note  : — The  question  in  this  case  was  whether  the  provisions  of  the 
Constitution  of  the  United  States  requiring  full  faith  and  credit  to  be  "given 
in  each  State  to  the  judicial  proceedings  of  every  other  State"  applies  to 
cases  of  divorce  where  the  libellant  only  is  within  the  jurisdiction  of  the 
court  granting  the  decree,  and  service  on  the  libellee.  resident  in  another 
State,  is  by  publication  only.  The  court  has  heretofore  decided  that  it 
does  so  apply  when  the  parties  have  at  any  time  during  marriage  lived 
together  in  the  State.  It  now  decides  that  it  does  not  apply  where  there 
has  been  no  such  marital  domicil.  It  does  not  deny  that  every  State  may 
deal  with  the  question  of  the  status  as  to  marriage  of  its  own  citizens,  but 
it  does  say  that  one  State  cannot  unmarry  the  citizen  of  another  State. 
That  is  to  say,  if  A  and  B  are  married,  Connecticut  may  unmarry  A,  resident 
therein,  but  B,  residing  in  New  York,  will  remain  married,  although  having 
no  spouse,  if  New  York,  B's  residence,  refuses  full  faith  and  credit  to  the 
divorce  by  the  Connecticut  court. 

It  is  not  denied  that  the  marriage  status  is  a  thing  subject  to  the  juris- 
diction where  it  subsists,  but  it  is  said  that  it  cannot  subsist  in  two  differ- 
ent States;  and  that  to  permit  the  action  of  one  State  to  destroy  it  in  an- 
other is  to  deprive  the  latter  of  jurisdiction  over  the  status  of  its  own  citizens. 

[  533  ] 


THE   LAW   OF   MARRIAGE   AND   DIVORCE. 

By  this  roundabout  reasoning  the  court  thinks  to  abate  somewhat  the  evils 
of  the  conflict  of  the  diverse  laws  of  the  several  States. 

It  does  not  seem  that  such  reasoning  is  convincing.  The  effect  of  the 
decision,  however,  will  not  be  to  invalidate  divorces  of  the  Connecticut- 
Haddock  kind.  The  great  majority  of  the  States  have  in  some  fashion 
recognized  the  validity  of  such  divorces,  as  pointed  out  by  the  dissenting 
opinion  of  Judge  Brown.  Indeed,  the  prevailing  opinion  states  that  the 
cases  in  the  State  courts  "overwhelmingly  preponderate  in  holding  that 
where  the  plaintiff  has  acquired  a  bona  fide  domicil  in  a  particular  State 
he  may  lawfully  appeal  to  the  courts  of  that  State  for  a  dissolution  of  the 
marriage  tie,  and  may  call  in  the  non-resident  defendant  by  publication." 
The  contention  of  the  majority  of  the  court  is  that  the  clause  of  the  Con- 
stitution has  not  been  the  ground  of  sustaining  such  divorces,  but  the 
doctrine  of  comity  between  the  States.  The  several  States  are  not  likely 
to  cease  their  recognition  of  divorces  obtained  in  other  States  because  of 
this  decision.  They  could  not  well  do  so  in  the  face  of  statute  provisions 
in  almost  every  State  for  summoning  non-resident  defendants  by  pub- 
lication. 

No  fear  need  be  entertained  as  to  an  attack  upon  the  validity  of  divorces 
like  the  Connecticut-Haddock  one  in  any  States  except  New  York,  Penn- 
sylvania and  North  and  South  Carolina,  and  the  state  of  things  in  these 
States  remains  as  it  has  been.  They  have  heretofore  refused  to  recognize 
divorces  of  the  Haddock  kind.  The  true  criterion  should  be  found  in  the 
statement  that  "If  the  judgment  is  conclusive  in  th6  State  where  it  was 
pronounced,  it  is  equally  conclusive  elsewhere,"  quoted  by  Judge  Holmes 
from  Christmas  v.  Russell,  5  Wall.  290;  18  L.  ed.  475. 

The  situation  may  perhaps  best  be  stated,  since  the  decision  m  the  Had- 
dock case,  in  the  language  of  Adams  v.  Adams,  154  Massachusetts,  296, 
where  the  judge  says,  and  the  language  is  pat  from  its  own  lack  of  lucidity: 
"But  if  the  judgment  is  thus  binding  to  all  intents  and  purposes  in  Cali- 
fornia, it  would  be  binding  elsewhere,  which,  as  has  been  shown,  is  not  the 
law." 


[534] 


CASES  CITED 

A. 

PAGES 

Abington  v.  North  Bridgewater, 100.  113 

A.  C.  V.  B.  C,     .     .     .     o     .     .     .     .     . 88 

Adams  V.  Adams, 8,104,130,154,168,172,190 

V.  Byerly,       .     .     .     .     , ,,.,....  2, 3 

V.  Hurst,   ,     .     = ,     „     .     45 

Aitchison    v.    Aitchison, ,     „     „     .     .     44 

Albee  v.  Albee, °  132 

Albert  v.  Albert,   .     . 143 

AUen  V.  Allen, 44,  96,  160,  166 

V.  Maclellan,       <,....       9 

Almond  v.  Almond, «     • 1^8 

Ames  V.  Chew, »     .     .  147 

Amos  V.  Amos, 118 

Anderson  v.  Anderson, 51,  53,  101,  129,  164,  166 

Andrews  V.  Andrews, 103,104,162,169,173,190 

Angelo  V.  Angelo, 1^>  1^'^ 

Anonymous, 35,50,95,122,132,169 

Anshutz   V.    Anshutz,         77, 154 

Appeal  of  Zerfass, 105 

Armant   v.    Her  Husband, 59 

Armstrong  v.  Armstrong,        137 

V.  Carson, 189 

Arrington  v.  Arrington, 166 

Ashford  v.  Ins.  Co., 32 

Ashmead  v.  Ashmead, 146 

Ashton  V.  Grucker, 98,  143 

Atherton  v.  Atherton,        103 

Atkins  V.  Atkins, 164 

B. 

Babbitt    v.    Babbitt, 78,154 

Babcock  v.  Smith, 187 

Bailey  v.  Bailey, 58,  60,  157 

[535] 


CASES    CITED. 

PAGES 

Bailey  v.  Fiske, 18 

Baird  v.  People,    o .     . 2 

Baker  V.  Baker, 81,93,94 

V.  People,       .     . o     ....     55 

Baldwin   v.    Baldwin, 152,  153 

Banister  v.  Banister, 120 

Banks  v.  Galbraith, 7 

Bankston  v.  Bankston, 15G 

Barber  V.  Barber,  « 166,189,191,192 

V.  Root,     .     „     .     .     .     .......     25,  38,  100,  101,  146,  186 

Bardin  v.  Bardin, 151 

Barnes  v.  Barnes,  .„„„„»     <,o     .........     .  63,  64 

Barney  v.  Cuness,      ..<,..     o     . 35 

Barrett  v.  Failing,    .     . 186 

Bartlett  v.  Bartlett, , 145 

Bascom  v.  Bascom, „     .     . 157 

Bascomb  v.  Bascomb, 86 

Bassett  v.  Bassett,    .,...„....<, 25,  82 

Bast  V.  Bast, 44,  140 

Batchelder  v.  Batchelder,   . 69 

Battey  v.    Battey, 158,  159 

Baugh  V.  Baugh, 117,  172 

Beach  v.  Beach, 104,  105 

Beadleston  v.  Beadleston, 159 

Beamish  v.  Beamish, 10 

Bean  v.   Bean, 71,  72 

Beard  v.  Beard, 103,  155 

Becker   v.    Becker, 104,  157 

Beggs  V.  State, 21,  54 

BeU  V.  BeU, 104,  105,  134 

Bennett  v.   Bennett, 74,  75 

V.  Brooks, 4 

V.  Smith, 21 

Benton  v.  Benton, 24,  197 

Berckmans  v.  Berckmans, 45,  47 

Berryman  v.  Berryman, 65,  70 

Besch  V.  Besch, 75 

Besore  V.  Besore, 117 

Bienvenu  v.  Her  Husband, 97 

Bigelow,  Estoppel, 189 

Billings  V.  Billings, 48 

Birdzell  v.  BirdzeU, 116,  117 

Bishop  V.  Bishop, 50,  77 

Bittinger  v.  Bittinger, 124 

Black  V.  Black, 47 

[536] 


CASES    CITED. 

PAGES 

Blake  v.  Blake, -16 

Blandy  v.  Blandy, 75 

Blaney  v.  Blaney, 70,  71 

Blank  v.  Nohl, 136 

Blankenship  v.  Blankenship, 161 

Blodgett  V.  Brinsmaid, 19 

Bloodgood  V.  Bloodgood, 153 

Bloom  V.  Richards, 4 

Blumenthal  v.  Tannenholz, 35 

Bodwell  V.  Bodwell, 80 

Boeck  V.  Boeck, 1'13 

Boggess  V.  Boggess, 154 

Bomsta  V.  Johnson, 104,171,172,185 

Bonker  v.  People, 21 

Bosholt  V.  Mehus, 188 

Bowman  v.  Bowman, 99)  153 

V.  Worthington, 150,  152     154 

Boyd's  Appeal, 185,  190 

Bradford  v.  Abend 92,  117 

Bradley  v.  Bradley, 134 

Bratton  v.  Bratton, 123 

Brewer  v.  State, 32 

Briggs  V.  Briggs, 96 

V.  Morgan, 86 

Brinkley  V.  Atty.  Gen., 14 

V.  Brinkley, 34,  153 

Brisbane  v.  Dobson, 166,  191 

Broadstreet  v.  Broadstreet, 42,  92 

Brooks  V.  Brooks, 45 

Brotherton  v.  Brotherton, 160 

Brow  V.  Brightman, 170 

Brown  V.  Brown, 8,69,71,86,120,122,185 

V.  Westbrook, 153 

Bryan  v.  Batcheller, 186 

V.  Bryan,        144 

Budington  v.  Mun'son, 30 

Bullock  V.  Bullock, 30,  192 

Burdick  v.  Burdick, 122 

Burge  V.  Burge, 169 

Burgess  v.  Burgess, 134,  158 

Burke  v.  Burke, 44 

Burlin  v.  Shannon, 103,  191 

Bums  V.    Burns, 124,  125,  159 

Bursler  v.  Bursler, 158,  164 

Burtis  V.  Burtis, 113,  141 

[537] 


CASES  CITED. 

PAGES 

Burton  v.  Burton, 62 

Burrows  V.  Purple, 152,156,160,163 

Busenbark  v.  Busenbark, 116 

Bush  V.  Bush, 167 

Butler  V.  Butler, 128 

V.  Washington, 125 

Bylandt  v.  Bylandt, 162 

c. 

Calame  v.  Calame, 160 

Calef  V.  Calef, 132 

Camden  v.  Belgrade, 29 

Cameron  v.  Cameron, 131 

Campbell  v.  Campbell, 156,  157,  161,  191 

Canfield  V.  Canfield 61 

Carey  v.  Carey, 161,  162 

Cargile  v.  Wood, 27 

Carlbertson  v.  Board  of  Commissioners, 100 

Carley  v.  Carley, 171 

Carlton  v.  Carlton, 162,  166 

Carotti  v.  State, 42 

Carpenter  V.  Carpenter, 59,  63,  64,  120 

Carris  v.  Carris, 24,81,  82 

Carruthers  v.  Carruthers, 60 

Carter  V.  Carter, 104,133,  161 

Cartwright  v.  Bate, 79 

Cass  V.  Cass, 98 

Casteel  v.  Casteel, 161 

Caswell  V.  Caswell, 8,  68 

Chaires  v.  Chaires, 151 

Chandler  v.  Chandler, 155 

Chapman    v.    Chapman, 89,  154 

V.  Gray, 40 

Chase  V.  Chase, 104,  151,  153,  160 

Cheatham  v.  Cheatham, 60 

Cheever  v.  Wilson, 189 

Chesnutt  v.  Chesnutt 61 

Choate  v.  Choate, 42,  52 

Church  V.  Church, 52,  53 

Clancy  v.  Clancy, 1 

Clapp  V.  Clapp, 53,  140 

Clare  v.  Clare, 47,  50 

Clark  V.  Clark 38,  113,  139,  148,  192 

V.  Field, 27 

V.  Pendleton, 3 

[538] 


CASES   CITED. 

PAGES 

Clark  V.  Slaughter, .  146 

Clarke  v.   Clarke, 24,  81 

Clay  V.  Clay, 43,  118 

Clayton  v.  Clayton, 29 

Clinton  v.  Clinton, 60 

Clutton  V.  Clutton, 128 

Coffin  V.  Dunham, 1^4 

Cogswell  V.  Tibbeth, 164 

Cohnv.Cohn, 142 

Colbum  V.  Colburn, 101 

Cole  V.  Cole, 7,  58,  60,  98,  165 

V.  Holliday, 2 

Coles  V.  Coles, 152,  159 

Collins  V.  Collins, 25,  82,  151 

V.  Ryan, "^ 

V.  Voorhees, ^" 

Colvin  V.  Reed, 189 

Com.  V.  Bakeman, 5" 

V.  Bowers, 44 

V.  Caponi, 29,  30 

V.  Dill 29 

V.  Giles, 129,  130 

V.  Graham, 9,  14 

V.  Gray, 44 

V.  Hayden, 31,  32,  57 

V.  Hurley, ^1 

V.  Hussey, ^^ 

V.  Ingersoll, 4o 

V.  Johnson, ^^ 

V.  KendaU, 104 

V.  Kenney, 12,  30,  32,  57 

V.  Lane, 14,   -5,  19- 

V.  Littlejohn, 30,  31 

V.  Merriam, 44 

V.  Mimson, 11,  16 

V.  Nichols, 45 

V.  Norcross, ^1 

V.  Roosnell, ^1 

V.  Snelling, 130 

V.  Squires, ^1 

V.  Steiger, 191 

Comstock  V.  Adams, 136 

V.  Com., -51 

Conant  v.  Conant, 141 

Cone  V.  Cone, 68 

[539] 


CASES   CITED. 

PAGES 

Conger  v.  Conger, 50,  75 

Conrad  v.  Williams, , 2 

Converse  v.  Converse, 148 

Cook  V.Cook, 46,59,60,61,99,114,169,189 

Cooley  V.  State, 54 

Cooper  V.  Cooper, 76 

Cornish  v.  Cornish, 76 

Cory  V.  Cory, 154 

Countz  V.  Countz, 152 

Coursey  v.  Coursey, 59 

Cowan  v.  Cowan, 35,  117,  151 

Cowles  V.  Cowles, 58,  62,  80 

Cowls  V.  Cowls, 168 

Cox  V.  Cox, 169 

Crane  v.  Crane, 47 

V.  State, 57 

Creamer  v.  Creamer, 118,  153 

Crehore  v.  Crehore, 83 

Crews  V.  Mooney, 160 

Creyts  v.  Creyts, 137 

Crow  V.  Crow, 59,  76 

Crump  V.  Morgan, 117 

Cumming  v.  dimming, 139,  140 

Cummins  v.  Cummins, 139 

Cunningham  v.  Reardon, 79 

Curry  v.  Curry, 8,  91 

D. 

Daiger  v.  Daiger, 152 

Daily  v.  Daily, 44,  46 

Dale  V.  State, 32,  57 

Damon  v,  Damon, 116 

Danforth  v.  Danforth, 76,  78,  172 

Daniels  v.  Benedict, 172 

v.  Daniels, 121 

v.  Lindley, 166 

Daspit  V.  Ehringer,        185 

D'Auvilliers  V.  De  Livaudais, 102,  117 

David  v.  David, 60 

Davis  V.  Com., 54 

V.  Davis, 63,  67,  94,  154 

Davol  v.  Howland, 187 

Dawson  v.  Dawson, 69 

Day  V.  Day, 168 

Dean  v.  Richmond 147 

[  540  ] 


CASES   CITED. 

PAGES 

Dean  v.  Skiff, ,     .     ,               ..     „     ,  3 

De  Graw  v.  De  Graw, 154 

DeLesdernier  v.  DeLesdernier, 70 

Delliber  v.  Delliber, 137 

De  Meli  v.  De  Meli, 100,  132 

Demelman  v.  Burton, 131 

Dennis  v.  Dennis, 49,  72 

Denny  v.  Denny, 35,  129 

Densmore  v.  Densmore, ,     .  60 

Derby  v.  Derby, ...,„,...  139 

V.  Phelps, 3 

Desmare  v.  United  States,     ...............  100 

Devall  V.  Devall,       158 

Devanbagh  v.  Devanbagh, 86,  87,  88 

Dickerson  v.   BrowTi, 26,  28 

Dickson  v.  Dickson, 9,  148 

Dillon  V.  DUlon, 61 

Dismukes  v.  Dismukes, 131 

Ditson  V.  Ditson, 6,100,101,114,  123 

Doan  V.  Doan, 97 

Donald  v.  Donald, 60 

Donnelly  v.  West, 114 

Doughty    V.    Doughty, 104,    114,    124,    189,  191 

Douglass  V.  Douglass, 138 

Dow  V.  Blake, 191 

Do^\'ns  v.  Flanders, 163 

Draper  v.  Draper, 134,  162 

Dred  Scott  v.  Sandford, 18 

Drennan  v.  Douglas, 2 

Duke  V.  Fulmer, 6 

Dunham  V.  Dunham, 104,114,192 

Duntze  v.  Levett, 6 

Durand  v.  Her  Husband, 65,  143 

Dutton  V.  Dutton, 40 

Dyer  v.  Dyer, 96 

E. 

Eames  v.  Sweetser, 79 

Earle  v.  Earle, 171 

Edgerly  v.  Edgerly,   , 145 

Edson  V.  Edson, 9,  171,  172 

Egbert  v.  Greenwait, 52 

Eggarth  v.  Eggarth, 138 

Eggerth  v.  Eggerth, 118 

Eichhoff's  Case, 34 

[541] 


CASES   CITED. 

PAGES 

Eidenmuller  v.  Eidenmuller, ,     ....    143,  156 

Ellison  V.  Martin, 1^^ 

V.  Mayor,       38,  39 

V.  Mobile, 147 

English  V.  English, 62,  169 

Ennis  v.  Ennis, 9' 

Espy  V.  Jones, 2 

Evans  v.  Evans, 47,  77,  136 

F. 

Faller  v.  Faller, 94 

Farnham  v.  Farnham, 138,  139 

Farnsworth  v.  Farnsworth, 94 

Faulk  v.  Faulk, 117 

Faustre  v.  Com., 57 

Felix  V.  State, 18 

Fellows  V.  Fellows, 94 

Fera  v.  Fera, 76,  145 

Ferguson  v.  Ferguson, 46 

Ferris  v.  Ferris, ' 86,  87 

Fidelity  Ins.  Co. 's  Appeal, 185 

Finn  v.  Finn, 30,  144,  158 

Firth  V.  Firth, o 105 

Fischer  v.  Fischer 131 

Fisher  v.  Bernard, .....     - 21 

V.  Fischer,      ............     ^ 164 

v.  Fisher,        . 161 

Fitts  V.  Fitts, 96 

Fizette  v.  Fitzette,    ''............     =     .••     60 

Fleming  v.  Fleming,     ................  63,  95 

V.  People,       ..............•«•••     31 

Flower  v.  Flower, 104,  189 

FoUweiler  v.  Lutz, 113 

Ford  V.  Ford, 58,  59,  60,  129 

Foss  V.  Foss, 82,  102,  150,  168 

Foster  v.  Foster, 163 

Fox  V.  Davis, 147 

Foy  v.  Foy, 144 

Francis  v.  Francis, 150,  151 

Franklin  v.  Franklin, 77 

Frith  V.  Frith, 153 

Fritts  V.  Fritts, 97 

Fritz  V.  Fritz, 59 

Frost  V.  Frost, 78 

V.  Vought, 2 

[542] 


CASES   CITED. 

PAGES 

Fuller  V.  FuUer, 9,  13,  26,  192 

Fulmer  v.  Fulmer, 86 

G. 

Gaillard  v.   GaiUard, 75 

Gaines  v.  Green  Pond  Iron  Mining  Co., 31 

Gall  V.  Gall, 30 

Galland  v.  Galland, 154,  158 

Galusha  v.  Galusha, 161 

Gardenhire  v.  Gardenhire, 161 

Gardner  .v  Gardner, 64,  129  130 

Gargner  v.   Gargner, 155 

Garland  v.  Garland, 154 

Garner  v.    Garner, 113,  123 

Garnett  v.  Garnett, 35,  155 

Gechter  v.  Gechter, 162 

Georgia  v.  Hobbs, 18 

Germany.  German, 131,  143 

Germond  v.  Germond, 52,  156 

Gholston  V.  Gholston, 96 

Gibson  v.  Gibson, 29,  116 

Gilley  v.  Gilley, 170 

Gilpin  V.  Gilpin, 128,  168 

Glass  V.  Glass, 8,  56 

Glasscock  v.  Glasscock, 128 

Glaude  v.  Peat, 120 

Gleason  v.  Gleason, 131 

Glenn  v.  Glenn, 152,  158 

Glover  v.  Glover, 158 

Glover's  _Appeal 156,  IGl 

Goldbeck  v.  Goldbeck, 77 

Golding  v.  Golding, 70 

Goodman  v.  Goodman, 96 

Good^vin  v.  Goodwin, 40 

V.  Thompson 21 

Gordon  v.  Gordon, 56 

Gorman  v.  State, 55 

Goshen  v.  Richmond, 91 

Goss  V.  Goss, 154,  156,  161 

Gould  v.  Gould, 53,  121 

Gourlay  v.  Gourlay, 71 

Governor  v.  Rector, 21 

Graft  v.  Graft 63 

Graham  v.  Martin, 2 

Grant  v.  Grant, 62 

[543] 


CASES   CITED. 

PAGES 

Graves  v.  Graves, 151,  154,  155,  157,  158,  164 

Gray  v.  Gray, 76,  158 

Green  v.  Green, 167 

V.  Spencer, 2 

Greenawalt  v.  McEnelly, 132 

Greene  v.  Greene, 155 

Greenleaf  v.  Greenleaf, 164 

Greenwood  v.  Curtis, 14 

Griffeth  v.  Griffeth, 86 

Griffin  v.  Griffin, 151,  157 

Gulick  v.  Gulick 2 

H. 

Haddock  v.  Haddock, appendix  459 

Hair  v.  Hair, 78 

Hairston  v.  Hairston, 113 

Halbrook  v.  The  State, 32 

Hale  V.  Hale, 139,  141 

Haley  v.  Haley, 169 

Hall  V.  Hall, 140 

V.  State, 42 

HaUs  V.  Cartwright, 70 

Hamilton  v.  Hamilton, 135,  136 

Hammond  v.  Hammond, 94,  144 

Hampton  v.  Hampton, 131,  139 

Handy  v.  Handy, 68,  139,  140,  141 

Hansel  v.  Hansel, 142 

Hanson  v.  Hanson, 120 

Harding  v.  Alden, 102,  120,  191 

v.  Harding, .  76 

Hare  v.  Hare, 121 

Harman  v.  Harman, 30,  32 

Harper  v.  Harper, 143 

Harrington  v.  Harrington, 129,  130,  131,  133,  154 

Harris,  Ex  parte, 19 

V.  Harris,        138,  189 

Harrison  v.  Harrison, 115,  128,  137,  166 

V.  State, 12 

Hart  v.  Hart, 63 

Harteau    v.    Harteau,        100,  102,  132 

Harvey  v.  Harvey, 61 

Haskell  v.  Haskell, 168 

Hassett  v.  Hassett, 134 

Hawes  V.  Hawes, 158,  159 

V.  State, 31 

[544] 


CASES   CITED. 

PAGES 

Hawkins  v.  Hawkins, 58 

Heatherwick  v.  Heatherwick, 99 

Hecht  V.  Hecht, 152 

Hedden  v.  Hedden, 48 

Heintzman  v.  Heintzman, 142 

Helden  v.  Helden, 157 

Heller  v.  Heller, 118 

Helms  V.  Franciscus, 40 

Hemmenway  v.  Towner, 52,  53 

Henderson  v.  Henderson, 59,  154 

Herberger  v.  Herberger, 44 

Hernandez,  Succession  of, 9 

Herrick  v.  Herrick, 47 

Hewitt  V.  Hewitt, 59 

Hick  V.  Hick, 102 

Hickman  v.  Hickman, 91 

Hilbish  V.  Hattle, 192 

Hill  V.Hill, 31,143,  189 

Hinds  V.  Hinds, 113 

Hitchins  v.  Hitchins, 59 

Hoffman  v.  Hoffman, 82,  101,  116,  122,  128,  139,  169 

Hoitt  V.  Moulton, 3 

Holbrook  v.  Holbrook, 164,  173 

Holmes  v.  Holmes, 75,  161,  162,  164,  172,  191 

Holston  V.  Holston, 42,  75 

Holthoefer  v.  Holthoefer, 46,  61 

Holyoke  v.  Holyoke, 59,  60 

Homan  v.  Earle, 2 

Homburger  v.  Homburger, 46 

Homes  v.  Carrier, 97 

Homston  v.  Homston, 123 

Hood  V.  Hood 113,  145,  186 

V.  State, 41,  185 

Home  V.  Home 101,113,  121 

Horning  v.  Horning, 169 

House  V.  House 10^ 

Hughes  V.  Hughes, 65,  138 

Huling  V.  Huling, 140 

Hull  V.  Hull, 6 

V   State  '^4'  ^^ 

Hunt  V.Hunt,'     ['.'.'.. 78,100,101,191 

V.  Thompson 25,  38,  146 

*7Q 

Hunter  v.  Boucher, '^ 

Hurlburt  v.  Hurlburt 94 

Hurtzig  V.  Hurtzig, ^^ 

35  [545] 


CASES   CITED. 

PAGES 

Hutchins  v.  Kimmell 31,  32 

Hyde  v.  Hyde, 14 

I. 

Ingersoll  v.  IngersoU, 77 

In  re  Cook, 8 

Inskeep  v.  Inskeep, 160 

Irwin  V.  Irwin, 169 

Isaacs  V.  Isaacs, 162 

J. 

Jackson  v.  Jackson, 167 

James  v.  James, 47,  79 

Jamieson  v.  Jamieson, 125 

Jamison  v.  Jamison, 158 

Jenkins  v.  Jenkins, ...  159 

Jenne  v.  Jenne, 125 

Jennings  v.  Jennings, 75 

Jeter  v.  Jeter, 44 

J.  G.  V.  H.  G., 85,  86,  87 

Jones  V.  Brownlee, 127 

V.Jones, 31,47,58,61,64,101,115,118,140,144,173 

Johnson  v.  Coleman, 185 

V.  Johnson, 46,  70,  94,  97,  99,  140,  143 

V.  Terry, 169 

Joyce  V.  McAvoy, 40 

E. 

Kashaw  V.  Kashaw, 116 

Keen  v.  Keen, 19 

Keerl  v.  Keerl,     .  150,  154 

KeUey  v.  Kelley, 34,  99 

V.  RUey, 2 

Kelly  V.  Kelly, 59,  122 

V.  Riley, 3 

V.  Scott, 17 

Kempf  V.  Kempf, 86 

Kendall  v.  Kendall, 153 

Kennedy  v.  Kennedy, 64,  78 

Kenney  v.  Com., 7 

King  V.  King, 143 

Kinney  v.  Com., 18 

Kinnier  v.  Kinnier, 189 

Kinsey  v.  Kinsey, 76,  158 

Klemme  v.  Klemme, 159 

[546] 


CASES   CITED. 

PAGES 

Kline  v.  Kline, 60 

Klutts  V.  Klutts, 67 

Knapp  V.  Knapp, 164 

Kneale  v.  Kneale, 134 

Knight  V.  Knight, 61,  143 

Koonce  v.  Wallace, 21 

Kremelberg  v.  Kremelberg, 169 

Krone  v.  Cooper, 101 

Kurtz  V.  Kurtz, 164 

L. 

Labotiere  v.  Labotiere, 122 

Lakin  v.  Lakin, 186 

Lambert  v.  Lambert, 168 

Lampkin  v.  Travelers'  Ins.  Co., 30 

Latham  v.  Latham, 46 

Lauber  v.  Mart, 59 

Lawrence  v.  Cooke, 3 

V.  Lawrence,       144 

Lawton  v.  Taylor, 161 

Leach  v.  Leach, 61,  96 

Leavitt  V.  Leavitt, ' 24,81,122,144 

Le  Barron  v.  Le  Barron, 34,  88 

Le  Brun  v.  Le  Brun, 35,  132 

Leith  V.  Leith, 51,100,104,155,175 

Leonard  v.  Leonard, 67 

Leseuer  v.  Leseuer, 128 

Letters  v.  Cady, 1 

Levering  v.  Levering, 76 

Lewis    V.    Lewis, 47, 90,  145 

Linden  v.  Linden, 131 

Linton  v.  Bank, 148 

Little  v.  Little 129 

Logan  V.  Logan, 159,  167 

Loker  v.  Gerald, 78,  114 

Long  V.  Long, 42,  82 

Lorenz  v.  Lorenz, 36,  87 

Loring  v.  Thorndike, 16 

Love  V.  Love, 191 

Lowry  v.  Coster, 29 

Lutz  V.  Lutz, 60,  138 

Lyle  V.  Lyle, 167 

Lynch  v.  Lynch 40,  76 

Lynde  v.  Lynde, 166 

Lyster  v.  Lyster, 140 

[547] 


CASES    CITED. 

PAGES 

H. 

Mace  V.  Mace, 122 

Madden  v.  Fielding, 155 

Maddox  v.  Patterson, 170 

Magahay  v.  Magahay, 70,  72 

Magowan  v.  Magowan, 105 

Magrath  v.  Magrath, 80 

Mahoney  v.  Mahoney, 161 

Maier  v.  Circuit  Judge, 35 

Mangue  v.  Mangue, 32,  144,  147 

Marks  v.  Marks 97 

Martin  v.  Martin, 96 

Mathewson  v.  Mathewson, 51 

Maxwell  v.  Maxwell, 159 

Mayhew  v.  Mayhew, 62 

Maynard  v.  Hill, 6 

Mazerat  v.  Godefroy, 185 

McBee  v.  McBee, 71 

McBride  v.  McBride, 159,  167 

McCabe  v.  Berge, 6,  9 

McCafferty  v.  McCafferty, 51 

McCahill  V.  McCahill, 143 

McCarthy  v.  Hinman, 170 

V.  McCarthy, 159 

McClung  V.  McClung, 60 

McClurg  V.  McClurg, 75 

McClurg  V.  Terry, 1,  27,  35 

McCoy  V.  McCoy, 75 

McCraney  v.  McCraney, 146 

McCulloch  V.  McCulloch, 131 

McCurdy  v.  Dillon, 127 

McCurley  v.  McCurley 153 

McDonough  v.  McDonough, 159 

McGee  v.  McGee, 154,  159,  162 

McGiffert  v.  McGiffert, 191 

McGill  V.  McGill, 69 

McGowen  v.  McGowen, 77 

Mclntire  v.  Mclntire, 154 

Mclntyre   v.    Mclntyre, 172    185 

McKay  v.  McKay, 70 

McMullen  v.  McMuUen, 158 

McPherson  v.  Com., 18 

McQuaid  v.  McQuaid, 77 

McShane  v.  McShane, 104 

Medina  v.  Medina, 104,  172 

[548] 


CASES   CITED. 

PAGES 

Medway  v.  Needham, 13 

Meehan  v.  Meehan, 38 

Megginson's  Estate, 33 

Meldowney  v.  Meldowney, 75 

Melvin  v.  Melvin, 62 

Menzie  v.  Anderson, 161 

Mercer  v.  Mercer 61 

Merrill  v.  Merrill, :  87,  88 

Messenger  v.  Messenger, 143,  168 

Meyers  v.  Pope, 15 

Mickle  V.  State, 28 

Middleborough  v.  Rochester, 7 

Milford  V.  Worcester 10,  15 

Miller    v.    Miller, 42,  43,  154,  170 

Mims  V.  Mims, 42 

Miner  v.  Miner, 168,  169 

V.   People, 41 

MitcheU  v.  Mitchell, 29,  43 

V.  United    States,        100,  104,  113 

Moe  V.  Moe, 164 

Mohler  V.  Shank, 116 

Moon  V.  Baum, 154 

Moore  v.  Moore, 30,  32 

Moores  v.  Moores, 144 

Moors  V.  Moors, 8,  142 

Moorsom  v.  Moorsom 48 

Morehouse  v.  Morehouse, 60,  61 

Morrell  v.  Morrell, 88 

Morrill  v.  Palmer, 8 

Morris  V.  Morris, 42,  58,  79,  81,  93,  122,  185 

Morrison  v.  Morrison, 48,  145,  160 

Mosser  v.  Mosser, 43,  44 

Mott  V.  Mott, 128 

Mount  V.  Mount, 46 

Moyler  v.  Moyler, 61,  63 

Muckenburg  v.  Holler, 136 

Muller  V.  Hilton, 102 

Munson  v.  Hastings, 1 

Muse  V.  Muse, 157 

Musselman  v.  Musselman, 121 

Mussing  V.  Mussing, 150 

Myers  v.  Myers, "^^ 

V.  Pope, 15 

Myrick  v.  Myrick, 69 

[  549] 


CASES   CITED. 

PAGES 

N. 

Names  v.  Names, ^ 

Nathans  v.  Nathans, ^° 

Newell  V.  Newell, ^ 

Nicely  v.  Nicely, ^^'^ 

Nichols  V.  Nichols, 41,42,143 

o 

V.  Weaver, ^ 

Nicholson    v.    Nicholson, ^'^'■^ 

Nickerson  v.  Nickerson, 1'2 

Nixon  V.  Second  Judicial  Dist.  Ct., 164 

Nogees  v.  Nogees, ^^ 

Noice  V.  Brown, 

Norris  v.  Norris, 1"^ 

North  V.  North, 46 

Northfield  v.  Plymouth, 31 

Norton  v.  Norton,     .     .     .     .    " 85 

Noyes  v.  Hubbard, 160 

0. 

Odd  Fellows  Beneficial  Assoc,  v.  Carpenter, 30 

O'Dea  V.  O'Dea, 191 

Odom  V.  Odom, 58 

Olin  V.  Hungerford, 161 

Oliver  v.  Oliver, 68,  169 

Orchardson  v.  Cofield, 90 

Orr  V.  Orr, ^^ 

Osgood  V.  Osgood, 1^9 

V.  State, 51 

Overhiser  v.  Overhiser, 187,  188 

Owen  V.  Owen, 143 

P. 

Pace  V.  Alabama, 18 

Paddock  v.  Robinson, 2 

Page  V.  Page, 166 

Pain  V.  Pain, 162,  166 

Palmer  v.  Palmer, 59,  63,  64,  76 

Parish  v.  Parish, 190 

Park  v.  Barron, 200 

Parsons  v.  Parsons, 154 

Parton  v.  Hervey, 21,  209,  275 

Pastoret  v.  Pastoret, 141 

Patterson  v.  Gaines, 31 

Pauly  V.  Pauly, 150 

Pawling  V.  Willson, 101 

[550] 


CASES   CITED. 

PAGE3 

Payne  v.  Payne, 47,  48 

Peabody  v.  Peabody, 58 

Pease  v.  Pease, 128 

Peavey  V.  Peavey, 50,  59,  61,  159 

Peckford  v.  Peckford, 157 

Peet  V.  Peet, 30 

People  V.    Baker, 55,  103,  114,  189 

V.  Beevers, 54 

V.  Bennett, 21 

V.  Chapman,       42 

V.  Crawford,        57 

V.  Crowley, 51 

V.  Darnell, 101 

V.  Dawell 183 

V.  Hovey, 55,  148 

V.  Imes, 31,  32 

V.  Perriman,        57 

Perkins,  Ex  parte, 162 

V.  Perkins 166 

Petrie  v.  People, 153 

Petterson  v.  Petterson, 104 

Phelan  v.   Phelan, 75,  104 

Phelps  V.  Baker, 191 

Philadelphia  v.  Wetherby, 191 

Phillips  V.  Allen, 52 

V.  Madrid, 192 

V.  Meyers, 40 

V.  Phillips, 98 

Pidge  V.  Pidge, 75 

Pierce  v.  Burnham, 147 

V.    Pierce, 49,  140,  142 

Pilgrim  v.  Pilgrim, 77 

Pinkard  v.  Pinkard, 96 

Pinkston  v.  McLemore, 40 

Pittman  v.  Pittman, 133 

Place  V.  Washburn, 163 

Poler  V.  Poler, 95 

Pollock  V.  Pollock, 43,  45,  50,  76 

V.  Sullivan, 3 

Poole  V.  Pratt, 1 

Porritt  V.  Porritt, 67,  72 

Porter  v.  Porter, 159 

Potts  V.  Potts, 151,  173 

Powelson  v.  Powelson, 96 

Powell  V.  Powell, 44,  86,  133,  142 

[551] 


CASES   CITED. 

PAGES 

Power  V.  Power, 77 

Powers  V.  Powers, 65,  144 

Pratt  V.  Pratt, 142 

Prescott  V.  Guyler, 2 

V.  Prescott, 155 

Prine  v.  Prine, 28 

Prosser  v.  Prosser, 154 

V.  Warner, 103,  114 

Putnam  v.  Johnson, 101 

V.  Putnam, 13,  26 


Quarles  v.  Quarles, 122 

Quincy  v.  Quincy, 137 

B. 

R.  V.  R., 172 

Ralston's  Appeal, 80 

Randall  v.   Randall, 53,  94,  122,  123 

Rawdon  v.  Rawdon, 36,  90 

Rawlins  v.  Rawlins, 172 

Ray  V.  Smith, 3 

Reed  V.  Reed, 59,  75,  104 

Reeves  v.  Reeves, 169 

Reid  V.  Reid 62,  144 

Reish  V.  Thompson, 2 

Ressor  V.  Ressor, 151,  157 

Rex  V.  Burton, 82 

Reynolds  v.  Reynolds, 81,  186 

V.  United  States, 51 

Rice  v.  Rice, 60,  167,  168 

Richards  v.  Richards, 97,  143 

Richardson  v.  Richardson, 117,  121 

V.  State, 42 

v.  Wilson, 37 

Richmond  v.  Richmond, 134 

Ricketts  v.  Ricketts, 153,  162 

Ridgely  v.  Ridgely, 34,  115 

Riev.  Rie, 61,  132 

Ristine  v.  Ristine, 140 

Ritter  v.  Ritter, 81 

Rivers  v.  Rivers, 68 

Robbins  v.  Robbins, 133,  164 

Robertson  v.  Robertson, 172 

Robinson  v.  Robinson, 97,  160 

[552] 


CASES   CITED. 

PAGES 

Rockwell  V.  Morgan ^^ 

Roe  V.  Roe _ 

Rogers  V.  Rogers, 48,75,137,169 

Rohrback  v.  Rohrback, ^^ 

Rooney  v.  Rooney, _ 

Rose  V.  Rose, 

Roseberry  v.  Roseberry, |^^ 

Rosholt  V.  Mehus ^^' 

Ross  V.  Ross J^ 

Rouse  V.  Rouse ~ 

Ruckman  v.  Ruckman, ^^ 

Rudd  V.  Rudd, ^^ 

Runkle  v.  Runkle, ^^ 

Russell  V.  Cowles, "" 

V.  Russell, 

Ryder  v.  Ryder 24,  47 

Ryeraft  v.  Ryeraft,        

s. 

Sanders  v.  Sanders, on 

Sargent  v.  Sargent ^ 

Saterlee  v.  Saterlee, 

171 
Scanlan  v.  Scanlan, 

Scarborough  v.  Scarborough - 

Schakelford  v.  Hamilton, 

Scheming  v.  Scheffling, ^ 

Schichtl  V.  Schichtl, ^J 

Schoessow  v.  Schoessow, 

Schrow  V.  Schrow, 

Schwartz  v.  Schwartz, _  •     •  ^ 

o     4.4.         C!„^4f  66,  97,  llo 

Scott  V.   Scott, CI 

V.  Shufeldt, °J 

Scroggins  V.  Scroggins, ^ 

f-h/'^tl, ■.::■.     '.O.,  104,  138 

Sew-all  V.   Sew-all, ' 

Shafher  v.  State 

Shafto  V.  Shafto, J^^ 

Shannon  v.  Shannon,     

Sharon  v.  Sharon,     

Sharp  V-.  Sharp, „'   ,  ., 

IZ             Qha^v                                                         .     •      62,  63,  103,  113,  151 
Shaw-  V.  bhaw, '       ' 

Shay  V.  Shay, ^^2 

Sheate  v.  Sheafe, 

Shearin  v.  Shearin, 

Shelton  V.  Pendleton, r  V^o  n" 

[  5o3  J 


CASES    CITED. 

PAGES 

Sherwood's  Appeal, 120 

Shrader  v.  Shrader, 104 

Shuck  V.  Shuck, 70 

Shute  V.  Sargent, 114 

Simonds  v.  Simonds, 51 

Simons  v.  Simons 47 

Simpkins  v.  Simpkins, 172 

Simpson  v.  Simpson, 77,  158 

Sims  V.  Sims, 8 

Sinclair  v.  Sinclair, 35 

Singer  v.  Singer, 173,  190 

Sisemore  v.  Sisemore, 77 

Skolfield  V.  Skolfield, 143 

Slade  V.  Slade, 165 

Sloan  V.  Cox, 165 

Small  V.  Small, 155,  169 

Smedley  v.  Smedley, 60 

Smith  V.  Brown, 136 

V.  Smith,        4,  24,  47,  59,  123,  125,  133,  140,  153,  187 

Snyder  v.  Snyder, 114 

Soper  V.  Soper, 65 

Southwick  V.  Southwick, 62,  76,  80 

Sower's  Appeal, 76 

Spafford  v.  Spafford, 122 

Sparhawk  v.  Sparhawk, 147,  152,  164 

Squire  v.  State, 31 

Standridge  V.  Standridge, 114 

Staples  V.  Staples, 163 

Starr  v.  Pease, 146 

State  V.  Abbey, 31,  57 

V.  Armington, 174 

V  Baker, 101 

V.  Brinneman, 118 

V.Clark, 57 

V.  Cone, 21,  22 

V.  Gonce, 29 

V.  Goodrich, 32 

V.  Henderson, 50 

V.  Kennedy, 13,  18 

V.  Libby, 29,  57 

V.  Norman, 55 

V.  Ross, 13 

V.  Sanders, 50 

V.  Shields 51 

V.  Stiles, ; 44 

[554] 


CASES   CITED. 

PAGES 

State  V.  Watson ^^^ 

V.  Watters, ^^ 

V.  Weatherby, 9,  148 

Steel  V.   Steel, 42, 137 

Steele  v.  Steele 62,  158 

Steffens  v.  Steffens, ^'^ 

Stephens  v.  Stephens, ^1* 

Stevens  v.  Stevens, ^^^ 

Stewardson  v.  Stewardson, 1^7 

Stewart   v.   Stewart, 62,  76,  80,  121 

V.  Vandervort, ^* 

Stillman  v.  Stillman, 164 

Stone  v.  Stone, 125 

Story  v.  Story, 160 

Stoutenburg  v.  Lybrand, 136 

Stoy  V.  Stoy. 161 

Strait  V.  Strait, 104 

Stratford  v.  Stratford, 118 

Stratton  v.  Stratton, 161,  169 

Strauss's  Estate, 30 

Streitwold  v.  Streitwold, 104 

Streitwolf  v.  Streitwolf 105 

St.  George  v.  Biddeford, 90 

St.  Sure  v.  Lindsfelt, 191 


Sullivan  v.  Kelley, 
Suter  V.  Suter, 


52 
104 


Sutton  V.  Warren, 13,  14,  20 

Swearingen  v.  Swearingen, 1^1 

Sylvis  V.  Sylvis, 59,  60,  133 

T. 

Taylor  v.  Robinson, 30 

V.  Taylor, 138.  139 

Tayman  v.  Tayman, 152,  153,  159 

Teft  v.  Teft, 37 

Thayer  v.  Thayer, 44,  117 

Thelen  v.  Thelen 104 

Thomas  v.  Thomas, 50,  68,  137,  i61,  164 

Thompson  v.  State, 55,  191 

v.  Thompson, 11,  98,  153,  158 

Thorns  v.  King, 101 

Thorp  V.  Thorp 9,  96,  192 

Thorpe  v.  Thorpe, "^5 

Throckmorton  v.  Throckmorton 46 

[555] 


CASES   CITED. 

PAGES 

Thurston  v.  Cavenor, 2 

V.   Thurston, 116,  145 

Tiffany    v.    Tiffany, 92.  117,  142 

Tiffin  V.  Tiffin, 164 

Tilton  V.  Tilton 72 

Timerson  v.  Timerson, 138 

Tolerton  v.  Williard, 161 

Tourtelot  V.  Tourtelot, 52 

True  V.  Ranney, 35 

V.  True, 172 

Tucker  v.  People, 31,  57 

Tumbleson  v.  Tumbleson, 157 

Turner  v.  Turner, 138,  155 

Turney  v.  Turney, 49 

Turpin  v.  State, 132 

Tyler  v.  Odd  Fellows  Mut.  Relief  Assn., 188 

Tyrell  v.  Tyrell, 159 

u. 

Uhlman  v.  Uhlman, 169 

Umlauf  V.  Umlauf, 160 

United  States  v.  Green, 30 

V.  Snow, 56 

V. 

Valleau  v.  Valleau, 42,  51 

Van  Aernam  v.  Van  Aernam, 52 

Vance  v.  Vance, 48 

Vanderpool  v.  Richardson, 2 

Van  Fossen  v.  State, 55,  105 

Van  Voorhis  v.  Brintnald, 148 

V.    Brintnall, 2,  192 

Veneall  v.  Veness, 2 

Verholf  v.  Van  Houwenlengen, 31 

Vetterlein,  Petition  of, 105 

Viertel  v.  Viertel, 48 

Vreeland  v.  Vreeland,    .     .     .     .     „ 30,  32 

w. 

W.  V.  W., 65 

Wachholz  v.  Wachholz, 61,  65 

Wade  V.  Kalbfleish, 6 

Wadsworth  v.  Wadsworth, 128 

Wagenseller  v.  Simmers, 3 

Wagner  v.  Wagner, 145 

[556] 


CASES    CITED. 

PAGES 

Wagoner  v.  Wagoner, 50 

AVahle  v.  Wahle, 47,  154 

Waldron  v.  Waldron, 153 

Wales  V.  Wales, 1^3 

Walker  v.  Leighton, 78 

Waller  v.  State, 51 

Walls  V.  State 22 

Walsh  V.  Walsh, 59 

Waltermire  v.  Waltermire, 64 

Wanamaker  v.  Wanamaker, 123,  171 

Wand  V.  Wand, 61,  168 

Ward  V.  Bailey, 35 

V.  Dulaney, ^^ 

V.  Ward, 64,  121 

Warner  v.  Warner, 79,  93 

Warivick  v.  Cooper, 226,  327 

Washburn  v.  Washburn, 43,  93 

Waters  v.  Waters, 164 

Watkins  v.  DeArmond, 79 

V.    Watkins,       100,  103,  104 

Watson  V.  Watson, "- 

Way  V.  Way, 120 

Weatherbee  v.  Weatherbee, 124 

Weaver  v.  Bachert, 2 

Weigel  V.  Weigel, '5 

Weishaupt  v.  Weishaupt, 152 

Welch  V.  Welch, 123,  167 

Wertz  V.  Wertz, 1^2 

Wessels  v.  Wessels, 61 

West  Cambridge  v.  Lexington, 192 

Weston  V.  Weston •     •  -'6 

Whaley  v.  Whaley, ^^ 

Wheeler  V.  AVheeler, 60,  64,  96 

Whipp  V.  Whipp, 129 

Whippen  v.  Whippen, 25 

Whipple  V.  Whipple, 1^4 

Whitcomb  v.  Whitcomb, S,  104,  154,  172 

V.  Wolcott, •     •       3 

White  V.  White, 1^1 

Whitenack  v.   Whitenack, 50 

Whitfield  v.  Whitfield, ^0 

Whitsell  V.  Mills, 25,  146 

Whittaker  v.  Whittaker, 132 

o 

Wightman  v.  Coates, 

Wilde  V.  Wilde, 135.  136 

[557] 


CASES   CITED. 

PAGES 

WiUard  v.  Willard, 25,  53,  121 

Willcox  V.  Wayne  Circuit  Judge, 11« 

William  v.  Goss, ''0 

Williams  v.  State, 57 

Williams  v.  Williams, 138,  160,  169 

Wilson  V.  Holt, 13,  26 

Winslow  V.  Winslow, 53,  116,  117,  121 

AVinston  v.  Winston, 1"^ 

Wisdom  V.  Wisdom, ^^'*>  1 '  1 

Wolcott  V.  Patterson, l^"* 

Wolf  V.  Wolf, ^"^ 

Wood  V.  Wood, 42,  52,  104,  192 

Worden  V.  Worden, l^^'  ^^^ 

Worthy  V.  Worthy, 1^^'  ^^J^ 

Wortman  V.  Wortman, 

■JO 

Wottrich  V.  Freeman, 

Wray  v.  Wray, 42,  154 

Wright  V.  Wright, 9^'  1^^'  ^^^ 

Y. 

2 
Yale  V.  Curtiss, 

Young  V.  Young, 68,  122 

Youngs  V.  Youngs, 62,  65,  69 


[5581 


INDEX 

[The  Figures  refer  to  Pages.] 

A 

Abandonment: 

continuity  of, 75 

constructive, .76 

definition   of, 74 

necessity  of  cessation   of  cohabitation, 75 

intention, 75 

refusal  to  leave  native  country, 77 

Ability: 

of  husband  to  support  wife, 93 

Absence: 

of  sexual  intercourse  as  evidence  of  impotency, 87 

presumption  of  death  from, 55 

Absolute  Divorce: 

effect  of  decree  of, 37,  146 

property  rights, 186 

statutes  as  to, 233  et  seq. 

Abuse : 

of  sexual  intercourse  as  cruelty, 62 

Abusive  Lan^age: 

as  cruelty, 59 

use  of  as  ground  for  divorce 96 

Abusive  Treatment: 

form  of  allegation  of 354 

Acceptance : 

of  offer  of  marriage, 1 

of  service, 124 

[  559  ] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Accusation: 

of  crime  as  constituting  cruelty, 64 

of  unchastity  as  constituting  cruelty, 59,  64 

Acquiescence: 

as  barring  relief  from  decree, 173 

Action : 

for  breach  of  promise, 3 

Actual  Violence: 

necessity  of,  to  constitute  cruelty, .          59 

Admissions : 

as  evidence  of  marriage, 29 

Adulterous  Disposition: 

admissibility  of  evidence  of, 44 

Adultery : 

as  barring  wife  of  dower, 186 

as  ground  for  divorce, 41 

commission    by    force, 50 

definition   of, 41 

effect  on  alimony, 164 

evidence  of, 43 

false  charge  of, 96 

form  of  allegation  of, 353 

mistake  of  law  as  defence, 51 

naming  of  particeps  criminis, 42 

necessity  of  penetration,  ... 50 

proof  of, 43 

record  of  conviction  as  evidence, 53 

scienter  as  a  defence,   ...           51 

separation  as  a  defence, 51 

specifications  of,  in  libel,     .          53 

voluntary  character  of, 42 

Affidavit : 

of  notice,  form  of,         •     .     .          365 

to  co-respondent, 367 

of  physician  that  witness  is  unable  to  attend  court, 398 

Affinity: 

as  affecting  capacity  to  marry, .17 

definition    of, 19 

[560] 


INDEX. 
[The  Figures  refer  to  Pages.] 


Af^nity— continued.  _         ^  2o 

.     .     .  236  et  seq. 


legitimacy  of  issue  of  marriage  void  because  of, 
statutes  as  to, 


Aflarmation: 

r  ....  146 

effect  of  decree  of, 

^^®-                                            .          .     •  9 

consent  of  parent  to  marriage  of  mmor ^^ 

of  capacity  to  marry, ^ 

of  making  engagement  to  marry, ^^^  ^^  ^^^ 

statutes  as  to, 

Agreement:  ^^^ 

as  to  custody  of  child, ^^ 

not  to  cohabit, 2^^ 

to  modify  decree, ^^^ 

to  sustain  decree, 

Agreement  to  Marry.    (See  also  Contract  of  Marriage;  Engagement 
TO  Marhv;  Promise  of  Marriage.) 

^ 

dissolution  of, j^ 

how  made, ^ 

making  on  Sunday, 2 

through  third  person, ^ 

presumption   of, 2 

upon  conditions, 2 

within  statute  of  frauds, 

Alabama: 

divorce  statutes, ^^g^ 

marriage  statutes, ^^2 

statistics  of  marriage  and  divorce, 

Alcoholic  Liquors :  ^^ 

use  of,  as  ground  for  divorce, 

Alimony:  ^^^ 

allowance  of  gross  sum, ,     .  159 

pending  appeal, ^  ^^^ 

to  husband, -j^g^ 

without  divorce  proceedings, ^^^ 

considerations  entering  into  award, *     !  160 

decree  for  as  debt, ^q^ 

36" t'^«l]     ' 


INDEX. 
[The  Figures  refer  to  Pages.] 

Alimony — continued. 

definition   of, 150 

discretion  of  court  as  to, 151 

enforcement  by  contempt  proceedings, 165 

of  decree  for, 161 

by  sister  state, 166 

failure  to  pay,  recognizance  on, 374 

form  of  allegation  for  allowance  of, 370 

execution  for, 371 

petition  for  contempt  for  non-payment  of, 372 

to  modify  decree  for, 401 

prayer  for, 352 

liability  of  non-resident  for, 155 

manner  of  awarding, 151 

marriage  as  pre- requisite  to, 150 

modification  of  decree  for, 163 

necessity  of  separation  of  parties, 158 

order  of  notice  on  prayer  for, 361 

'pendente  lite,  allowance  of, 152 

permanent  allowance  of, 151 

prayer  for, 155 

reference  to  arbitrator, 161 

request  for,  in  libel, 121 

statutes  as  to, 234  et  seq. 

surety  for  payment  of, 161 

termination  of, 164 

under  common-law  marriage, 153 

under  foreign  decree, 191 

Alimony  Pendente  Lite: 

enforcement  of  order  for, 152 

Allowance : 

order  for, 369 

Amendment: 

of  decree  for  alimony, 163 

of  libel, 52 

of  pleadings,        129 

Anmilment.     (See  also  Nullity.) 

action  by  guardian  of  lunatic, 7 

allowance  of  alimony  in  suit  for, 152 

application  by  third  person, 115 

distinguished  from  divorce, 34 

[  562  ] 


INDEX. 

PTie  Figures  refer  to  Pages.] 

Annulment — continued. 

effect  of  decree  of, 146 

form  of  petition  for, 356 

grounds    for, 7,  36 

fraud, 81 

impotency, 84 

insanity, 90 

mistake, 82 

syphilis,        -^ 

jurisdiction  to  decree, 34,  115 

laches  in  suit  for, 35 

parties  to  suit  for, 35 

statutes  as  to, 235  et  seq. 

venue  of  suit  for, 35 

Answer: 

form  of, 407 

plea  of  connivance, 48 

Antenuptial  Intercourse: 

effect  of, 82 

Appeal: 

allowance  of  alimony  pending, 159 

form  of  order  dismissing 397 

Appearance : 

as  conferring  jurisdiction, H^ 

by  co-respondent, 43,  118 

by  public  officer  in  divorce  suit, 118 

Appendix, 459 

Application: 

for  allowance,  form  of, 369 

of  counsel  fees 370 

Apprehension: 

of  violence  as  constituting  cruelty, 59 

Arbitrator: 

of  amount  of  alimony, 161 

Arizona: 

divorce  statutes, '^^"^ 

1Q4 
marriage  statutes 

statistics  of  marriage  and  divorce, 41- 

[563] 


INDEX, 

[The  Figures  refer  to  Pages.] 

Arkansas : 

divorce  statutes, 237 

marriage  statutes, 194 

statistics  of  marriage  and  divorce, 413 

Arrest: 

on  execution  for  alimony, 163 

Attachment: 

form  of  prayer  for 351 

of  husband's  property, 156 

order  for, ...  364 

request  for,  in  libel, '. 121 

to  enforce  payment  of  alimony, 161 

Attempt: 

to  take  life  as  cruelty, 60 

Attorney: 

signature  to  libel, 121 

Attorney  and  Client: 

contingent  fee, 126 

A  Vinculo  Matrimonii: 

effect  of  decree  of, 146 

B 

Bankruptcy : 

efTect  of.'on  decree  for  alimony, 160 

Bastardy: 

marriage  to  prevent  conviction  of, 77 

Bawdy  House : 

entering,  as  evidence  of  adultery,     .     .  46 

Behavior  of  Parties: 

presumption  of  engagement  to  marry  from, 3 

Bigamy: 

effect  of, 34 

what  constitutes, .     .     54 

[564] 


INDEX. 

I 
[The  Figures  refer  to  Pages.] 

Bill  of  Particulars: 

form  for 375 

right  to, 130 

Bodily  Harm: 

threats  of,  as  constituting  cruelty, 59 

Bond: 

on  failure  to  pay  aUmony, 374 

Breach  of  Promise : 

defenses  to  action  for, 3 

legal  causes  for, 3 

what  constitutes, 3 

when  remarriage  has  been  forbidden, 2 

Burden  of  Proof: 

as  to  impotency 87 

in  divorce  suit, 131 

of  lucidity, 142 

of  validity  of  marriage, 33 

0 

California : 

divorce  statutes, 238 

marriage  statutes, 195 

statistics  of  marriage  and  divorce, 414 

Capacity  to  Marry: 

as  affected  by  consanguinity  and  affinity, 17 

public  policy, 8 

effect  of  intoxication, 28 

of  idiot  or  insane  person, 90 

what  law  governs  as  to, 7 

white  person  with  negro, 18 

Care  of  Children,     (See  also  Custody  of  Children.) 

statutes  as  to, 234  et  seq. 

Celebration  of  Marriage: 

necessity  of, 10 

on  Sunday, • 4 

refusal  as  breach  of  contract , 3 

[565] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Certificate : 

of  decree  of  divorce, 387 

of  marriage, 31 

Chancery : 

jurisdiction  to  decree  nullity, 115 

Change : 

of  domicil, 100 

Change  of  Venue : 

form  of  motion  for, 375 

Character: 

defamation  of,  as  ground  for  divorce, 97 

Chastity : 

reputation  for, 50 

Child: 

born  of  voidable  marriage,  legitimacy, 16 

decree  for  custody  of, 392  et  seq. 

effect  of  divorce  on  legitimacy  of, 56 

form  of  petition  for  custody  of, 352,  400 

prayer  to  legitimatize, 359 

haheaa  corpus  for, 391 

joinder  in  suit  for  divorce, 117 

order  of  notice  on  prayer  for  custody  of, 361 

order  to  produce,  in  court, 391 

preference  of,  as  to  custody, 169 

statutes  as  to  care  and  custody  of, 234  et  seq. 

support  of, 170 

validity  of  marriage  of, 21 

Child-bearing  Organs: 

want  of,  as  ground  for  annulment, 85 

Children:  (See  also  Child.) 

custody  of, 167 

decree  for  custody  of, 392  et  seq. 

effect  on,  of  remarriage  before  dissolution  of  prior  marriage,     .     .       8 

form  of  petition  for  custody  of, 352,  400 

order  of  notice  on  prayer  for  custody  of, 361 

statutes  as  to  care  and  custody  of, 234  et  seq. 

[566] 


Index. 
[The  Figures  refer  to  Pages.) 

Chloral: 

use  of,  as  ground  for  divorce, 69 

Ohlorof  onn : 

use  of,  as  ground  for  divorce, 69 

Choking: 

as  cruelty, 61 

Christian  Science: 

practising  of,  by  wife, „ 96 

Chronic  Mania: 

as  ground  for  divorce, 91 

Circumstantial  Evidence: 

of  adultery, 43 

of  marriage, 29 

Clergyman : 

testimony  of,  to  establish  marriage, 32 

Clerk  of  Court: 

issuance  of  order  of  notice, 122 

Cocaine: 

use  of,  as  ground  for  divorce, 69 

Cohabitation: 

as  evidence  of  marriage, 29 

definition   of, 55 

necessity  of  cessation  to  constitute  desertion, 75 

of  insane  person  after  restoration  to  sanity, 7 

refusal  of, , 77 

to  renew,  after  separation, 77 

resumption  of,  as  ground  for  dismissal  of  libel, 145 

Coition: 

denial  of,  as  cruelty, 61 

Collateral  Attack: 

on  validity  of  marriage, 91 

Collusion: 

allegation  of, 377 

as  a  defense, 135 

[567] 


INDEX. 
[The  Figures  refer  to  Pages.] 

as  ground  for  dismissal  of  libel, 145 

vacation  of  decree, 172 

definition   of, I35 

plea  of,  to  prevent  decree  absolute, 386 

Colorado : 

divorce  statutes, 240 

marriage    statutes, 196 

statistics  of  marriage  and  divorce, 415 

Colored  Person: 

prohibition  of  marriage  with  white  person, 18 

what  constitutes, 18 

Common-law  Marriage: 

decree  for  alimony, 153 

of  white  person  and  negro, 18 

what  constitutes, 26 

Communicating  Disease: 

as  cruelty, 61 

Complaint.     (See  also  Petition,  Pleading.) 

allegations  of, 121 

sigiiing  by  libellant, 121 

Compulsion: 

marriage  performed  through, 81 

Compulsory  Marriage: 

validity  of, ,    .     .     24 

Compulsory  Reference: 

to  determine  physical  capacity, 88 

Concubine : 

keeping  of,  as  ground  for  divorce, 45 

Condonation : 

allegation  of, 377 

as  ground  for  dismissal  of  libel, 145 

definition   of, <■ 137 

Conduct  of  Parties: 

presumption  of  engagement  from, 3 

[568] 


IXDEX. 
[The  Figures  refer  to  Pages.] 

Confession: 

as  evidence  of  marriage, 30 

as  proof  of  adultery, 48 

Conflict  of  Laws: 

capacity  to  contract  marriage, 7 

jurisdiction  of  action  for  divorce, 100 

marriage  of  white  with  colored  person, 18 

validity  of  marriage, 12 

Congenital  Incapacity: 

etfect  of, 88 

Connecticut: 

divorce  statutes, 241 

marriage  statutes, 196 

statistics  of  marriage  and  divorce, 416 

Connivance : 

allegation   of, 376 

necessity  of  pleading, 48 

what  constitutes, 48 

Consangtiinity: 

as  affecting  capacity  to  marry, 17 

definition   of, 19 

legitimacy  of  issue  of  marriage  void  because  of, 20 

statutes  as  to, 236  et  seq. 

Consent: 

of  guardian  to  marriage  of  ward, 9 

of  parent  to  marriage  of  minor, 9 

of  woman  to  commission   of  adultery, 50 

to  dissolution  of  engagement  to  marry, 2 

to    marriage, 1 

Constable: 

service  of  process  by, 122 

Constructive  Desertion: 

what  constitutes, 76 

Contempt: 

for  non-payment  of  alimony, 162 

form  of  petition  for, 372 

order  of  notice  on  petition  for 373 

[569] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Oontempt  Proceedings: 

to   enforce   payment   of   alimony, 165 

Contingent  Fee: 

in    divorce    suit, 126 

Continuity: 

of  desertion, 75 

Contract: 

for  contingent  fee  in  divorce  suit, 126 

of  separation, 39 

Contract   of  Marriage.     (See  also  Agreement  to  Marry;   Engage- 
ment TO  Mahuy;  Promise  of  Marriage.) 

between  persons  of  same  sex, 21 

how  made, 1 

legal  causes  for  breach  of, 3 

making  on  Sunday, 4 

mental  capacity  to  enter  into, 7 

physical  capacity  to  enter  into, 7 

public  policy  as  affecting, 8 

what  law  governs  capacity  to  enter  into, 7 

Conviction  of  Crime: 

as  ground  for  divorce, 67 

Copulation : 

defect  of,  as  ground  for  annulment, 86 

Co-respondent.     (See  also  Paramour:  Particeps  Criminis.) 

affidavit  of  notice  to, 367 

evidence  of, 47 

right  to  intervene, 42,  118 

Corroboration : 

of  evidence, 133 

of  testimony  of  particeps  criminis, 47 

Costs: 

decree  for, 395 

Counsel  Fees: 

allowance  in  suit  for  divorce, 153 

forjn  of  application  for  allowance  of, 370 

[570] 


INDEX. 
[The  Figures  refer  to  Pages.] 

County  Attorney: 

apf)earance  in  divorce  suit, ,.     .     .  118 

Court: 

giving  full  faith  and  credit  to  decree  of, 459 

jurisdiction  of  divorce  cause, 99 

suit   for  annulment, 34 

vacation  of  decree, 185 

venue  of  suit  for  divorce, 120 

Crime  against  Nature: 

as  ground  for  divorce, 95 

Criminal  Conduct: 

as  ground  for  divorce, 95 

Criminal  Marriages: 

statutes  as  to, 193  et  seq. 

Cross-bill: 

right  to  file, 128 

Cruel  and  Abusive  Treatment: 

form  of  allegation  of, 354 

Cruelty: 

as  ground  for  divorce, 58 

form  of  allegation  of,     .         354 

Curable  Impotency: 

effect  of, 86 

Curtesy : 

agreement  to  relinquish, 39 

effect  of  divorce  on, 146 

Custody  of  Children: 

considerations    entering   into   award, 168 

decree  for, 392 

discretion  of  court  as  to, 167 

form  of  agreement  as  to, 393 

petition  for, 352,  400 

modification  of  decree  as  to, 169 

order  of  notice  on  prayer  for, 361 

pending  divorce  proceedings, 168 

statutes  as  to, 234  et  seq. 

[571] 


INDEX. 
[The  Figures  refer  to  Pages.] 

D 

Damages: 

for  breach  of  promise  to  marry, 3 

Death: 

as  bar  to  vacation  of  decree, 185 

as  dissolving  engagement  to  marry 2 

of  spouse,  promise  to  many  after, 2 

presumption  of,  from  desertion, 80 

Decree: 

agreement  to  modify, 395 

sustain 397 

a  vinculo  matrimonii,  ei'iect  oi, 1-16 

for  alimony  as  lien, 101 

enforcement  of, I'Jl 

in  sister-state, l(j(> 

modification  of, 163 

for  costs, 395 

for  custody  of  child, 392  d  neq. 

forms  of, 379  d  srq. 

form  of  petition  to  modify, K)! 

vacate, 'U.'} 

giving  full  faith  and  credit  to, 459. 

of  affirmation,  effect  of, .     .  140 

of  divorce,  certificate  of, .  387 

of  nullity,  effect  of 146 

of  other  state,  vacation  of, 173 

order  to  modify, 396 

vacation  of, 171 

Decree  Absolute: 

objections  to, 385,  405 

plea  of  collusion  to  prevent, 386 

Decree  A  Mensa  et  Thoro: 

effect  of, 147 

Decree  Nisi: 

effect  of, 147 

making  absolute, 185 

order    on, 386 

Decree  Pro  Confesso: 

right  to  pass, 129 

[572] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Deed  of  Separation: 

validity, ^^ 

Defamation  of  Character: 

as  ground  for  divorce ^' 

Defect: 

of  copulation, 

Defence : 

of  connivance 

to  action  for  breach  of  promise 3 

to  suit  for  divorce, ^^'^ 

Defendant: 

to  suit  for  divorce .     .  116 

Definition: 

of  adultery, 

10 
of  affinity 

of  alimony '^^ 

of  cohabitation, ^^ 

of  collusion ^^^ 

of  condonation,       

•   •  IQ 

of  consanguinity, 

of  desertion ^^ 

of  domicil 

of  marriage 

■    •       •  140 

of  recnmination, 

De^ee: 

58 
of  cruelty, 

Delaware : 

243 
divorce  statutes, 

107 

marriage  statutes, '' 

statistics  of  marriage  and  divorce, 417 

Delay: 

in  bringing  suit  for  divorce, 1^9 

Dementia: 

as  ground  for  divorce, 

Denial: 

of  sexual  intercourse  as  cruelty 61 

[573] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Deposition: 

use  of,  in  divorce  suit, 133 

Desertion: 

constructive, 7G 

continuity,  of 75 

definition  of, 74 

denial  of  sexual  intercourse  as 62 

form  of  allegation  of, 355 

imprisonment  as, 67 

justification  for, 143 

necessity  of  cessation  of  cohabitation, 75 

intention, 75 

refusal   to  cohabit, 77 

leave  native  country, 77 

where  both  parties  dwell  under  same  roof, 77 

Detectives: 

evidence  of, .     I     45 

Dipsomaniac: 

divorce  from, 70 

Disclosure : 

by  husband  of  amount  of  property, 160 

Discovery: 

form  of  order  for, 378 

Discretionary  Cause: 

for  divorce, 73 

Discretion  of  Cotirt: 

allowance  of  alimony, 151 

custody  of  children, 167 

Disease: 

communicating  of,  as  cruelty, 61 

Disinterested  Person: 

service  of  process  by, 122 

Dismissal: 

as  bar  to  subsequent  libel, 145 

of  appeal,  form  of  order, 397 

of  libel  by  court, , I4.5 

without    prejudice, 146 

[574] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Dissolution: 

2 
of  engagement  to  marry, 

District  Attorney: 

118 
appearance  in  divorce  suit, 

District  of  Columbia: 

245 
divorce  statutes,     

marriage  statutes, 

statistics  of  marriage  and  divorce, '^^^ 

Diverse  Citizenship: 

as  ground  for  removal  of  cause  to  Federal  court, 99 

Divorce: 

adultery    as   ground    for, 

cruelty  as  ground  for, 

decree   of,    certificate    of, 

discretionary  causes  for, 

distinguished    from    nullity, 

effect  of  voluntary  separation, 

on  legitimacy  of  children, 

on  life  insurance 

on    property    rights 

entry  of  hbel, " 

insanity  after  marriage, 

invalidity  of  marriage  as  defence  to, 1^^ 

jurisdiction  of  courts ' 

nonresident  libellee ' 

power  of  legislature   to  grant, 

promise  to  marry  after, 

proof  of  marriage, • 

resolutions  of  National  Congress 45^  et  seg. 

right  of  insane  person  to  bring  libel  for, 9^ 

to  remarry  after, '', 

,   ,.  ^.  .  411  etseq. 

statistics,  as  to 

statutes,    as    to, ^ 

vacation  of  decree  of, 

venue  of  suit  for, 

Divorce  A  Mensa  et  Thoro: 

„         ,  38 

effect  of, ^Qr. 

on   property   rights, •     • 

[  575  ] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Divorce  A  Vinculo  Matrimonii: 

effect  of, 37 

on  property  rights, 186 

Domicil: 

as  basis  of  jurisdiction, 1^^* 

as  determining  capacity  to  contract  marriage 7 

validity  of  marriage, 13 

definition   of, 101 

evidence  as  to, 132 

manner  of  acquisition, 102 

of   libeUee, -i^''-^ 

of  wife, 113 

right  of  husband  to  fbc, 78 

Dower: 

agreement  to  relinquish, 39 

effect  of  divorce  on, 140,   1S6 

Drawing: 

of  libel, 349 

Drug: 

use  of,  as  ground  for  divorce, 69 

Drunkenness : 

as  defence  to  cruelty, 65 

as  ground  for  divorce, •">■• 

at   celebration   of   marriage, 143 

knowledge  of,  at  time  of  marriage, 72 

Duress: 

effect  of,  on  marriage, 81 

Dwelling  under  Same  Roof: 

as   desertion, 77 

E 

Ecclesiastical  Courts: 

jurisdiction  in  divorce   causes, 99 

Emission: 

necessity  of,  to  constitute  adultery,  50 

Endangerment: 

of  health,  or  life, 60 

[576] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Engagement  to  Marry.     (See  also  Agreement  to  Marry;  Contract 
OF  Marriage:  Promise  of  Marriage.) 

as  executory  contract, 1 

dissolution  of, 2 

how  made, 1 

legal   causes    for   breach   of, 3 

making  on  Sunday, 4 

through  third  person, 2 

presumption   of 3 

upon  conditions, 2 

within  statute  of  frauds, 3 

Entry : 

of  libel, 122 

Epileptic: 

marriage  of 11 

Equity: 

jurisdiction  to  decree  nullity, 115 

Evasion: 

of  .statute  forbidding  marriage 25 

Evidence: 

deposition  as, 133 

of  adultery, 43 

of  domicil, 132 

of  familiarities, 50 

of  marriage, 29 

of  prostitutes 49 

of  young  children 134 

pleadings   as, 131 

record  of  conviction 53 

Examination : 

form  of  order  for, 378 

presumption  from  refusal  to  submit  to, 88 

to  determine  physical  capacity,     .     .  88 

Execution: 

for  alimony,  form  of, 371 

to  enforce  payment  of  alimony 161 

37  [ 577  ] 


IXDKX. 
[The  Figures  refer  to  Pages.] 

Executory  Contract: 

promise  of  marriage  as, 1 

Extraterritorial  Effect: 

of  statute  forbidding  marriage  of  minor, 9 

remarriage, 192 

Extreme  Cruelty: 

what  constitutes, 63 

F 

Failure: 

to  pay  alimony,  recognizance  on, 374 

Failure  to  Prosecute: 

as  ground  for  dismissal  of  libel, 145 

False  Accusations: 

as  constituting  cruelty, ...     64 

Falsehood: 

effect  on  marriage, 24 

False  Representations: 

as  defence  to  action  for  breach  of  promise, 3 

as  ground  for  annulment, 81 

Familiarities : 

evidence  of, 50 

Family  Jars: 

effect  of, 65 

Fault  Finding: 

as  ground  for  divorce, 96 

Fear: 

marriage  entered  into  because  of, 24 

Federal  Courts: 

jurisdiction  in  divorce  causes, 99 

Feeble-minded: 

marriage  of, 11 

[5781 


INDEX. 

[The  Figures  refer  to  Pages.] 

Felony: 

conviction  of,  as  ground  for  divorce, 67 

Feme  Covert: 

right  to  bring  suit  for  divorce, 118 

Filling: 

of  libel, 122 

Final  Decree: 

for  alimony,  enforcement  in  sister-state, 166 

Fleeing  from  Justice: 

as  ground  for  divorce, 95 

Florida: 

divorce  statutes, 246 

marriage  statutes, 199 

statistics  of  marriage  and  divorce, 419 

Force : 

adultery  committed  by, 50 

Foreign  Ahmony  Decree: 

enforcement   of, 166 

rights   under, 191 

Foreign  Divorce: 

giving  full  faith  and  credit  to  decree  of, 459 

validity  of 189 

Foreign  Marriage: 

proof  of, 32 

Foreign  State: 

enforcing  decree  for  alimony, 166 

Forms: 

index  to 345 

Fraud: 

as  defence  to  action  for  breach  of  promise, 8 

as  ground  for  annulment, 31 

effect  on  marriage, 24 

form  of  petition  for  annulment  on  ground  of, 358 

[579] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Frauds,  Statute  of: 

promise  of  marriage  within, 3 

Fraudulent  Concealment: 

of  epilepsy, 

Fugitive  from  Justice: 

divorce  form, ^^ 

Full  Faith  and  Credit: 

decree  of  other  state, ^^^ 

Future  Marriage: 

upon  conditions ^ 

Future  Payments: 

of  alimony,  enforcement, 166 

O 

Garnishment: 

form  of  prayer  for, 351 

order  for, "^""^ 

General  Denial: 

form  of  plea  of, 378,  407 

General  Guardian: 

right  to  defend  suit  for  divorce, 117 

Georgia: 

divorce  statutes, 248 

marriage  statutes, 199 

statistics  of  marriage  and  divorce, 420 

Gonorrhoea: 

as  evidence  of  adultery, 46 

Gross  Neglect  of  Duty: 

as  ground  for  divorce 96 

Guardian : 

action  by,  to  annul  marriage  of  lunatic, 7 

consent  of,  to  marriage  of  ward, 9 

intervention  by 128 

of  defendant  ward,  joinder  in  suit  for  divorce, 117 

[580] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Guardian — continued. 

right  to  bring  suit  for  divorce, 117 

defend  suit  for  divorce, 117 

signature  to  Ubel, 121 

Guardian  Ad  Litem: 

right  to  defend  suit  for  divorce, 117 

H 
Habeas  Corpus: 

for  minor   child, "^^1 


as  ground  for  divorce,  "^ 


Habitual  Drunkenness 
as  ground  for  divor 
form  of  allegation  of, •     •     •     •  354 

Habitual  Indignities: 


as  ground  for  divorce. 


96 


Hair  Pulling 

as  < 
Hawaii: 


A1 

as  cruelty, 


OKI 

divorce  statutes, 

200 
marriage  statutes, ^^^ 

Health: 

treatment  endangering, "" 

Homestead: 

effect  of  divorce  on, 1^^ 

House  of  111  Fame: 

entering  as  evidence  of  adultery, 

Husband: 

allegation  of  impotency  of, 360 

allowance  to,  of  alimony, l^-'' 

attachment  of  property  of, 1^^ 

disclosure  of  amount  of  property, 160 

duty  to  support  wife, ^^^ 

liability  for  counsel  fees  of  wife, 153 

support  of  wife,  , 

refusal  of,  to  support  wife 

right  in  property  after  divorce, 1^^ 

to  custody  of  child 1^' 

to  fLx  place  of  domicil, '^ 

[  581  ] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Hydroceles: 

as  cause  of  impotency, 85 

I 
Idaho : 

divorce  statutes, 254 

marriage  statutes  ....  201 

statistics  of  marriage  and  divorce, 421 

Identifying  Witness: 

in  service  of  process, 124 

Idiot.     (See  Insane  Person.) 

Illegitimacy: 

remarriage  before  dissolution  of  prior  marriage, 8 

111  Fame: 

entering  house  of,  as  evidence  of  adultery,     .  46 

Illicit  Relation: 

as  impediment  to  marriage, 1 

Illinois : 

divorce  statutes, 255 

marriage  statutes, 201 

statistics  of  marriage  and  divorce, 422 

Imbecile: 

marriage  of, 1 1 

Immoral  Conduct: 

as  ground  for  divorce, 95 

Impairment  of  Obligation  of  Contract: 

marriage  not  within  constitutional  inhibition  of, 5 

Impediment: 

to  marriage, 1 

Impersonation: 

as  ground  for  vacation  of  decree, 172 

Impotency: 

as  ground  for  annulment  of  marriage, 7 

dissolving  engagement  to  marry, .  2 

causes   of, 85 

effect  of, 84 

[582] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Impotency— (cm^mwed. 

form  of  allegation  of, 

order  for  physical  examination, 

necessity  of  existence  at  time  of  marriage, 

pleading, 

of  husband,  allegation  of, 

of  wife,  allegation  of, 

presumption  as  to  existence, '     '     qq 

from  refusal  to  submit  to  physical  examination,     ....     88 
time  of  instituting  proceedings  because  of, 88 

Imprisonment: 

as  grovmd  for  divorce 

form  of  allegation  of, 

for  non-payment  of  alimony, 

Inability : 

to  support,  effect  of, 

Incapacity : 

as  ground  for  dissolving  engagement  to  marry, 2 

Incestuous  Marriage: 

17 

what  constitutes, 

Incompetency: 

of  parties  to  bring  suit  for  divorce, 

^^'^\  345 

to  forms, 

Indian: 

prohibition  of  marriage  with  white  person, 

^''^^*-                                                                                                   .     .  259 
divorce  statutes, 

marriage  statutes, ^22 

statistics  of  marriage  and  divorce, 

Indian  Territory: 

divorce   statutes, 202 

marriage  statutes, 

Indignities :  ^^ 

as  ground  for  divorce, •     *     ' 


INDEX. 

P?he  Figures  refer  to  Pages.] 

Infant,     (See  also  Minor.) 

allowance  of  marriage  of,  by  judge  of  probate, 11 

consent  of  parent  to  marriage  of,     .          9 

validity  of  marriage  of, 21 

Infectious  Disease: 

communicating  of,  as  cruelty, 61 

Injunction: 

against  husband's  disposing  of  property, 161 

Innocent  Party: 

suit  for  divorce  by, 116 

Insane  Person.     (See  also  Lunatic.) 

capacity  to  contract  marriage, 7,  90 

cohabitation  after  restoration  to  sanity, 7 

marriage  of, 7 

right  to  bring  suit  for  divorce, 92,  117 

Insanity: 

after    marriage, 8,  91 

as  defence  to  charge  of  adultery, 42 

suit  for  divorce, 142 

as  ground  of  annulment, 90 

form  of  petition, 359 

Insolvency: 

effect  of,  on  decree  for  alimony, 160 

Instructions : 

for  drawing  libel, 349 

Insulting  Language: 

as  cruelty, 59 

Insurance : 

as  affected  by  divorce, 187 

Intemperance : 

as  ground  for  divorce, 69 

Intention: 

as  determining  validity  of  marriage, 14 

to  acquire  domicil, 102 

to  desert, 75 

[  584  J 


INDEX. 

[The  Figures  refer  to  Pages.] 

Interlocutory  Orders: 

right  to  pass, 129 

Intervention: 

by  guardian, 128 

by  particeps  criminis, 42 

in  suit  for  divorce, 118 

Intoxication: 

as  defence  to  cruelty, 65 

as  ground  for  divorce, 69 

at  celebration  of  marriage, 143 

effect  of,  on  marriage, 28 

form  of  allegation  of, 354 

of  woman,  as  defence  to  charge  of  adultery, 50 

Iowa: 

divorce  statutes 262 

marriage  statutes, 204 

statistics  of  marriage  and  divorce, 423 

Issue: 

of  marriage  void  because  of  affinity,  legitimacy, 20 

of   vi)iclal)le   marriage, 16 

proof  of  non-access, 52 

Itch: 

communicating  of,  as  cruelty, 61 

J 

Joinder: 

of  causes  for  divorce, 122 

of  parties  in  suit  for  divorce, 116 

Judge : 

of  probate  court,  allowance  of  marriage  of  minor, 11 

Judicial  Divorce: 

what  constitutes, 37 

Jurisdiction: 

acquisition  by  publication, 114 

form  of  plea  to, 376 

of  actions  for  divorce, 99 

of  chancery  to  decree  nullity, 34,  115 

[585] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Jurisdiction — continued. 

over  nonresident  libellee, '*'^^ 

statutes  as  to, 234  d  «(/• 

Jury: 

inferring  promise  to  marry, 

Justification: 

of  desertion, ^'^•' 

K 

Kansas: 

divorce  statutes, 264 

marriage  statutes, '"^'^ 

statistics  of  marriage  and  divorce, 424 

Keeping  Concubine: 

a-s  ground  for  divorce, 45 

Kentucky: 

divorce  statutes, 266 

marriage  statutes, 20.5 

statistics  of  marriage  and  divorce, 425 

Kicking: 

as  cruelty, ^1 

Knowledge : 

of  drunkenness  at  time  of  marriage, 72 

of  impotency, 84 

L 

Laches: 

in  moving  to  vacate  decree, 172 

in  suit  for  annulment, 35 

divorce,        139 

Lack  of  Development: 

as  cause  of  impotency, ........     85 

Lawful  Age: 

to  marry, 1 

[586] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Law  of  Place : 

as  determining  validity  of  marriage, 12 

Legal  Causes: 

for  breach  of  promise  to  marry, 3 

Legislative  Divorce: 

history   of- .     37 

in   Delaware 418 

Legitimacy: 

effect  of  divorce  on, 56 

of  issue  of   voidable  marriage, 16 

marriage   void   because  of  affinity, 20 

presumption   of 52 

proof  of  non-access, 52 

Legitimate: 

form   of  prayer  to, 359 

Lex  Loci  Contractus: 

as  determining  validity  of  marriage, 12 

Libel: 

allegations  of,  in  general, 121,  127 

as  to  adultery, 53 

as  to  impotency, 88 

amendment  of, 52 

dismissal  by  court, 145 

form  of, 350 

instructions   for  drawing, 349 

joinder  of  causes  in, 122 

necessity  of  naming  particeps  criminis, 42 

right  of  insane  person  to  bring, 92 

signing  by  libellant, 53,  121 

verification  of, 121 

Libellant: 

order  for  personal  liberty  of, 368 

signing  of  libel, 53 

Lien: 

decree  for  alimony  as, 161 

Life: 

attempt  to  take,  as  cruelty, 60 

treatment  endangering, 60 

[587] 


INDEX. 

[The  Figures  refer  to  Pages,] 

Life  Insurance: 

as  affected  by  divorce, 187 

Limitation  of  Action: 

suit   for  divorce, 139 

Living  Apart: 

as  ground  for  divorce, 98 

Loathsome  Disease: 

communicating  of,  as  cruelty, 61 

Louisiana: 

divorce  statutes, 269 

marriage  statutes, 206 

statistics  of  marriage  and  divorce, 426 

Limacy: 

after  marriage, 91 

Lunatic.     (Sec  also  Insane  Person.) 

action  by  guardian  to  annul  marriage  of, 7 

cohabitation  after  restoration  to  sanity, 7 

marriage  of, 7 

right  to  bring  suit  for  divorce, 117 

M 

Maiden  Name : 

form  of  prayer  for  right  to  resume, 352 

resumption  of,  on  divorce, 147 

statutes  as  to  right  to  resume, 238  et  seq 

MaU: 

notice  by, 123 

form   of, 365 

to  co-respondent, 367 

Maine: 

divorce  statutes, 271 

marriage  statutes, 206 

statistics  of  marriage  and  divorce, 427 

Maintenance: 

duty  of  husband  as  to, 150 

[588] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Malformation: 

of    generative    organs, 


85 


Marriage: 

annulment  on  ground  of  fraud, 81 

impotency,        84 

as  pre-requisite  to  alimony, 150 

breach  of  promise  of, '^ 

celebration  of 1^ 

collateral  attack  on  validity  of, ....     91 

consent  to,     

definitions  of, " 

effect  of  duress  on, 81 

insanity   after, "1 

evasion   of   statute   forbidding, 25 

evidence  of, ^ 

form  of  offer  of,        2 

petition  to  annul, "^^^ 

grounds  for  annulment  of, ' 

incestuous, 1' 

invahdity  of,  as  defence  to  suit  for  divorce, 144 

law  of  place  as  determining  validity  of, 12 

necessity  of  offer  of, ^     •       1 

solemnization   of, 10 

nullity  of, ^"* 

of  child, 9,  21 

of  epileptic, 

origin  of, 

pre-requisites, 

proof  of, 32,  57 

source  of, " 

statistics,        Mletseq. 

status  of, ^'  ^ 

table  of  statutes  as  to, 193  ei  seq. 

to  prevent  conviction  of  bastardy, '' 

when  criminal, 193  ei  seq. 

when  prohibited, 193  ei  seg. 

when  void, 19^  ^«  m- 

when  voidable, 193  e<  seq. 

within  prohibited  degrees,  as  ground  for  dissolving  engagement,       2 

Marriage  Certificate: 

as  evidence  of  marriage, 31 

[589] 


INDKX. 
[The  Figures  refer  to  Pages.] 

Marriage  Laws: 

table  of 193  e<  seq. 

Marriage  Settlement: 

effect  of  divorce  on, 1^7 

Marriage  Statutes: 

table  of, 193  c^  seq. 

Maryland: 

divorce  statutes, 272 

marriage  statutes, 207 

statistics  of  marriage  and  divorce 428 

Massachusetts: 

divorce  statutes, •"''* 

marriage  statutes, 208 

statistics  of  marriage  and  divorce, 429 

Master: 

reference  to, 1^" 

Masturbation: 

as  cause  of  impotency, 85 

as  constituting  cruelty, 64 

Mental  Capacity: 

to  contract  marriage, 7,  90 

Mental  Suffering: 

as  constituting  cruelty, 62 

Michigan: 

divorce  statutes, 287 

marriage  statutes, 209 

statistics  of  marriage  and  divorce, 430 

Minnesota: 

divorce  statutes, 290 

marriage  statutes, 210 

statistics  of  marriage  and  divorce, 430 

Minor.     (See  also  Infant.) 

allowance  of  marriage  of,  by  judge  of  probate  court, 11 

consent  of  parent  to  marriage  of,          9 

right  to  bring  suit  for  divorce, 117 

validity  of  marriage  of, 21 

[590] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Miscegenation: 

prohibition  of, 18 

statutes  as  to, 236  et  seq. 

Misrepresentation : 

effect  on  marriage, 24 

Mississippi: 

divorce  statutes, 292 

marriage    statutes, 211 

statistics  of  marriage  and  divorce, 431 

Missouri: 

divorce  statutes, 293 

marriage  statutes, 211 

statistics  of  marriage  and  divorce, 432 

Mistake : 

as  ground  for  annulment, 82 

Mistaken  Identity: 

effect  of,  on  marriage, 23 

Mistake  of  Fact: 

as  defence  to  charge  of  adultery, 51 

Mistake  of  Law: 

as  defence  to  charge  of  adultery, 51 

Modification: 

of  decree  as  to  custody  of  child, 169 

agreement  for, 395 

alimony, 163 

Mongolian: 

prohibition  of  marriage  with  white  person, 18 

Montana: 

divorce  statutes, 295 

marriage  statutes, 212 

statistics  of  marriage  and  divorce, 433 

Morphine: 

use  of,  as  ground  for  divorce, 69 

[591] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Motion: 

for  alimony ^^^* 

for  specifications, •'' •' 

to  transfer  suit  to  other  county 37.i 

Mutual  Consent: 

to  dissolution  of  engagement  to  marry 2 

to  separation,  not  desertion i^ 

Mutual  Cruelty: 

effect  of, 65 

N 

Nagging: 

as  constituting  cruelty, 63 

National  Congress: 

resolutions  on  uniform  divorce  laws, 453  et  seq. 

Native  Country: 

refusal  to  leave,  as  desertion 77 

Natural  Impotency: 

presimiption  as  to  existence, 86 

Nebraska: 

divorce  statutes, 297 

marriage  statutes, 213 

statistics  of  marriage  and  divorce, 434 

Necessaries: 

liability  of  husband   for, 79 

Ne  Exeat: 

to  compel  payment  of  alimony, 162 

Neglect  to  Provide: 

form  of  allegation  of, 355 

Negro: 

prohibition  of  marriage  with  white  person, 18 

what  constitutes, 18 

Nervous  Temperament: 

cmelty  as  affecting, 60 

[592] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Nevada: 

divorce  statutes, 298 

marriage    statutes, 213 

statistics  of  marriage  and  divorce, 435 

New  Hampshire: 

divorce  statutes, 300 

marriage  statutes, 214 

statistics  of  marriage  and  divorce, 436 

New  Jersey: 

divorce  statutes, 302 

marriage  statutes, 215 

statistics  of  marriage  and  divorce, 437 

New  Mexico: 

divorce  statutes, 303 

marriage  statutes, 215 

statistics  of  marriage  and  divorce, 438 

New  York: 

divorce  statutes, 305 

marriage    statutes, 216 

statistics  of  marriage  and  divorce, 438 

Non-access: 

proof  of, 52 

Nonage : 

form  of  petition  for  annulment  on  ground  of, 359 

statutes  as  to, 233  et  seq. 

table  of, 22 

Non  Compos  Mentis.     (See  also  Insane  Person.) 

right  of,  to  bring  libel, 92 

Non-payment: 

of  alimony,  recognizance  on, 374 

Non-resident: 

liability    for    alimony, 155 

North  Carolina: 

divorce  statutes, 307 

marriage  statutes, 217 

statistics  of  marriage  and  divorce, 439 

38  [  593  ] 


INDEX. 

[The  P'igures  refer  to  Pages.] 

North  Dakota: 

divorce  statutes, 309 

marriage  statutes, 218 

Notice : 

affidavit  of,  to  co-respondent 367 

by  publication, 123 

form    of, 362 

by  registered  letter, 123 

form  of  affidavit  of, 365 

order  of,  on  petition  for  contempt, 373 

on  prayer  for  alimony, 361 

to   nonresident   libellee, 459 

Nullity.     (See  also  Annulment.) 

allowance  of  alimony  in  suit  for, 152 

application  by  third  person, 115 

distinguished    from   divorce, 34 

effect  of  decree  of, 146 

grounds  for, 36 

jurisdiction  of  suit  for, 34,  115 

laches  in  suit  for, 35 

parties  to  suit  for, 35 

venue  of  suit  for, 35 

o 

Objection: 

to  decree  absolute, 385,  405 

Obligation  of  Contract: 

marriage  not  within  constitutional  inhibition  of  impairment  of,  5 

Occasional  Intoxication: 

as  ground  for  divorce, 71 

Offer  of  Marriage: 

acceptance  of, 1 

by  third  person, 2 

form  of, 2 

necessity  of, 1 

withdrawal  of, 2 

Ohio: 

divorce  statutes, 311 

marriage  statutes, 218 

statistics  of  marriage  and  divorce, 440 

[594] 


IN'DEX. 
[The  Figures  refer  to  Pages.] 

Oklahoma: 

divorce  statutes, ^^^ 

21 Q 
marriage  statutes, ^'■^ 

Old  Age: 

as  cause  of  impotency, °^ 

Opium: 

use  of,  as  ground  for  divorce, "9 

Opportunity: 

to  commit  adultery, *^ 

Order: 

for  allowance, ^"^ 

for  personal  liberty  of  libellant, 368 

for  physical  examination, 378 

of  dismissal  of  appeal, 397 

that  decree  nisi  shall  not  become  absolute, 386 

to  modify  decree, 396 

to  produce  child  in  court, 391 


Order  of  Notice: 


362 


by  publication,        

issuance  of, 

on  petition  for  contempt, 373 

on  prayer  for  custody  of  children, 361 


Oregon: 


divorce  statutes, 

91 Q 
marriage  statutes,  ^'■^ 


314 

' 219 

statistics  of  marriage  and  divorce, 441 

Origin: 

of  marriage,       ^ 

P 
Paramour.     (See  also  Co-Respondent;  Particeps  Criminis.) 

evidence  of, 47 

right  to  appear  and  defend, 42 

Pardon: 

after  conviction,  effect  of, °S 

[595] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Parent: 

consent  of,  to  marriage  of  child 9 

joinder  in  suit  for  divorce, 117 

Partial  Divorce: 

effect  of, 38,  147 

on  property  rights, 186 

statutes  as  to 233  et  seq. 

Particeps  Criminis.     (See  also  Co-Respondent;  Paramour.) 

amendment  to  show  name  of, 52 

evidence  of, -17 

necessity  of  naming,  in  libel 42 

right  to  appear  and  defend, 42 

Particulars : 

bill  of, 130 

Parties: 

as    witnesses, 132 

defendants  to  suit  for  divorce, 1 1 G 

intention  of,  as  determining  validity  of  marriage, 14 

to  nullity  suit, 35 

to  suit  for  divorce, 116 

Passion: 

display  of,  as  constituting  cruelty, 59 

Pecuniary  Ability: 

of  husband  to  support  wife, 93 

Pendente  Lite: 

form  of  application  for  allowance  of  alimony, 370 

Penetration: 

necessity  of,  to  constitute  adultery, 50 

Pennsylvania: 

divorce  statutes, 316 

marriage    statutes, 220 

statistics  of  marriage  and  divorce, 442 

Periodical  Debauches: 

effect  of, ....         ....     71 

Perjury: 

as  ground  for  vacation  of  decree, 172 

[596] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Permanent  Alimony: 

allowance  of, 151 

Personal  Liberty: 

of  libellant,  order  for, 368 

Personal  Service: 

of  process, 123 

outside  of  State, 124 

Personal  Violence: 

necessity  of,  to  constitute  cruelty, 59 

Petition.     (See  also  Complaint;  Pleading.) 

allegations  of, 121 

as   to   impotency, 88 

for   alimony, 155 

for  annulment,  form  of, 356 

for  contempt  for  non-payment  of  alimony, 372 

for  custody  of  children, 440 

for  writ  of  protection, 399 

necessity  of  naming  particeps  criminis, 42 

signing  by  libellant, 121 

to  modify  decree  for  alimony, 401 

to  vacate  decree, 171,  403 

Philippines: 

divorce  statutes, 318 

marriage  statutes, 221 

Physical  Capacity: 

to  contract  marriage,        7 

Physical  Examination: 

form  of  order  for, 378 

presumption  from  refusal  to  submit  to, 88 

to  determine  capacity  of  party, 88 

Physical  Violence: 

necessity  of,  to  constitute  cruelty, 59 

Physical  Weakness: 

of  husband  to  support  wife,     ...  .........     93 

Physician: 

affidavit  that  watness  is  unable  to  attend  court, 398 

[597] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Pimps: 

evidence  of, 49 

Plain  tifE: 

to  suit  for  divorce, ....  116 

Pleading.     (See  also  Complaint;  Petition.) 

amendment  of, 129 

as  evidence, 131 

bill  of  particulars, 130 

cross-biU, 128 

Plea  to  Jurisdiction: 

form  of, 376 

Polygamy: 

what  constitutes, 64 

Poor  Debtor: 

relief  of,  from  payment  of  alimony, 163 

Porto  Rico: 

divorce  statutes, 319 

marriage  statutes, 222 

Posting  Wife: 

effect  of, 79 

Prayer: 

for  alimony, 155 

Preference ; 

of  child  as  to  custody, 169 

Pregnancy: 

at  time  of  marriage, 81 

Presumption: 

as  to  existence  of  impotency, 86 

as  to  person  who  may  serve  process, 122 

from  refusal  to  submit  to  physical  examination, 88 

in  suit  for  divorce, 133 

of  death  from  absence, 55 

desertion, 80 

of  legitimacy, 52 

[598] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Presumption — continued^ 

of  marriage, ...     29 

from  cohabitation, 2 

of  promise  to  marry, 

Prior  Insanity:  ^^ 

as  ground  for  annulment, 

Privileged  Communication:  ^^^ 

allegation  of  libel  as, 

Probate  Court:  ^^ 


consent  of  judge  of,  to  marriage  of  mmor. 


Process: 


service  of, 


122 


Profanity:  gg 

as  cruelty, 

Prohibited  Degrees: 

marriage  within,  as  ground  for  dissolving  engagement,     .     .     •       ^ 

Prohibited  Marriages:  igsetseq. 

statutes  as  to,    

Prohibition:  jg2 

of  remarriage, 

Promise  of    Marriage.     (See  also  Aokkkmkxt  to  Mxkkv;  Coktkxct 

OF  Marriage:  Engagement  to  Marry.)                      ....  1 

as  executory  contract, 3 

breach   of, ...."•  2 

dissolution  of, 1 

how  made, ....  3 

legal  causes  for  breach  of, .     ,     .  4 

making  on  Sunday, ...  2 

through  third  person, !'.".*..  3 

presumption   of, 2 

upon  conditions, ....  3 

within  statute  of  frauds 

Proof:  29 

of  marriage, '^ 124 

of  ^f^«^' [  599  ] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Property  Rights: 

effect  of  divorce  on, 186 

Prosecuting  Attorney: 

appearance  in  divorce  suit, ll*^ 

Prostitutes : 

evidence  of, '^^ 

Protection: 

form  of  petition  for  writ  of, 399 

Provocation: 

as  a  defence  to  a  suit  for  divorce, 143 

Puberty: 

marriage  before  arrival  at  age  of, 21 

Publication: 

order  of  notice  by, 362 

service  by, 114,  123 

validity  of  decree  on  service  by, 459 

Public  Defamation: 

as  ground  for  divorce, 97 

Public  Officer: 

appearance  by,  in  divorce  suit, 118 

Public  Policy: 

as  affecting  capacity  of  parties  to  marry, 8 

R 

Rape: 


as 


defence  to  charge  of  adultery, 42 


Ratification : 

of  marriage  of  child 21 

of   voidable   marriage 16 

Receiver: 

of  husband's  property, 162 

Recognizance : 

on  failure  to  pay  alimony, 374 

[  600  ] 


IXDEX. 

[The  Figures  refer  to  Pages.] 

Reconcilation: 

effect  on  alimony, 164 

Records: 

of  conviction,  as  evidence, 53 

of  marriage, 31 

Recrimination: 

allegation  of,  as  evidence, 131 

as  a  defence, 139 

as  ground  for  dismissal  of  libel, 145 

definition   of, I'^O 

form  of  plea  of, 378 

Reference: 

to  determine  amount  of  husband's  property 160 

physical  capacity, 88 

Refusal: 

of  sexual  intercourse,  as  desertion, 80 

of  support, 93 

to  cohabit, ' ' 

to  follow  husband,  as  desertion, 78 

to  renew  cohabitation  after  separation, 77 

Refusal  to  Provide:  ' 

form  of  allegation  of, 355 

Registered  Letter: 

notice  by, 1-3 

form  of, 365 

to  co-respondent, 367 

Relaxation: 

as  cause  of  impotency, 85 

Religious  Society: 

joining  of,  as  ground  for  divorce, 96 

Remarriage : 

before  decree  of  divorce  is  made  absolute, 56 

before  dissolution  of  prior  marriage,  effect  on  children      ....  8 

effect  of  statute  forbidding, 9 

on  promise,  when  forbidden, 2 

extraterritorial  effect  of  statute  prohibiting, 192 

[  601  ] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Remarriage — continued. 

restrictions  against, 148 

right  to, 25 

statutes  as  to, 234  et  seq. 

vacation  of  decree  after, 172 

Removal  of  Cause: 

to  Federal  court, 99 

Repealed  Statute: 

vacation  of  decree  granted  under, 173 

Reputation: 

as  proof  of  marriage, 31 

as  to  marriage, 29 

for  chastity, 50 

Residence : 

as  affecting  jurisdiction, 102 

statutes  as  to, 234  e«  seq. 

Resolutions: 

by  National  Congress  on  uniform  divorce  laws,      ....  453  et  seq. 

Restraint: 

upon  personal  liberty  of  libellant, 368 

Review: 

of  foreign  decree  of  divorce, 189 

Revival : 

of  condoned  offence, 138 

Revocation : 

of  agreement  to  separate, 77 

Rhode  Island: 

divorce  statutes, 320 

marriage  statutes, 223 

statistics  of  marriage  and  divorce, 443 

Rupture : 

as  cause  of  impotency, 85 

[602] 


INDEX. 

[The  Figures  refer  to  Pages.] 

S 

Scienter: 

as  a  defence  to  charge  of  adultery, 51 

Scolding: 

as  ground  for  divorce, 96 

Security: 

for  payment  of  alimony, 162 

Separate  Support: 

right  of  wiie  to, 148 

Separation: 

as  defence  to  charge  of  adultery, 51 

by  mutual  consent  not  desertion, 76 

deed  of, 39 

from  necessity, 75 

revocation  of  consent  to, 77 

validity, 39 

Service: 

acceptance  of, 124 

by    publication, 123 

of  process, 122 

proof  of, 124 

regularity  in 125 

statutes  as  to, 234  et  seq. 

Setting  Aside: 

of  decree, 171 

Sexual  Intercourse: 

absence  of,  as  evidence  of  impotency, 87 

abuse  of,  as  constituting  cruelty, 62 

before  marriage, 82 

denial  of,  as  cruelty, 61 

refusal  of,  as  desertion, 80 

Shakers: 

joining  of,  as  ground  for  divorce, 96 

Signature : 

to  libel, 53,  121 

[  603  ] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Sister-State: 

enforcing  decree  for  alimony, 166 

Sodomy: 

as  ground  for  divorce, 95 

Solemnization  of  Marriage: 

necessity  of, 10 

Source : 

of  marriage, 6 

South  Carolina: 

divorce  statutes, 323 

marriage  statutes, 224 

South  Dakota: 

divorce  statutes, 324 

marriage   statutes, 225 

Specifications : 

bill  of, 130 

motion  for, 375 

Specific  Performance: 

of  foreign  decree  for  alimony, 191 

Spendthrift: 

right  to  bring  suit  for  divorce, 117 

Spitting: 

as  cruelty, 61 

Spouse: 

promise  to  marry  after  death  of, 2 

Squandering: 

wife's  property, 94 

Statistics : 

of  marriage  and  divorce, 411  etseq. 

Statute  of  Frauds: 

promise  of  marriage  within, 3 

Statutes: 

as  to  divorce, 233  et  seq. 

marriages, 193  et  seq. 

[  604  ] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Striking: 

as  cruelty, ^1 

Subsequent  Insanity: 

as  ground  for  divorce, 90 

Successive  Executions: 

to  secure  alimony, 163 

Subsequent  Marriage: 

vacation  of  decree  after, 172 

Summons : 

form  of, 362 

Sunday: 

promise  of  marriage  made  on 4 

Support: 

duty  of  husband  as  to, 150 

liability   of  husband   for, 79 

refusal   of, 93 

Surety: 

for  payment  of  alimony 161 

Surgical  Examination: 

presumption  from  refusal  to  submit  to, 88 

to  determine  physical  capacity, 88 

Syphilis: 

as  defence  to  action  for  breach  of  promise, 3 

as  evidence   of  adultery, 46 

as  ground  for  annulment  of  marriage, 24 

T 

Table : 

of  divorce  statutes, 233  et  seq. 

of   marriage   statutes, 193  et  seq. 

of  nonage, 22 

of   statistics   of  marriage  and   divorce 411  et  seq. 

Temper: 

display  of,  as  constituting  cruelty, 59 

[605] 


INDEX. 
[The  Figures  refer  to  Pages.] 

Temporary  Alimony: 

allowance  of, 152 

Temporary  Impotency: 

effect  of, 86 

Tennessee: 

divorce  statutes, 326 

marriage    statutes, 226 

statistics  of  marriage  and  divorce, 444 

Termination: 

of  alimony 164 

Testes: 

loss  of, 85 

Texas: 

divorce  statutes, 328 

marriage  statutes, 226 

statistics  of  marriage  and  divorce, 445 

Third  Person: 

suit  for  divorce  by, 116 

Threats : 

as  constituting  cruelty, 59,  64 

Transfer: 

of  suit  to  other  county,  form  of  motion  for, 375 

Treatment: 

endangering  health  or  life, 60 

Trustee : 

of  property  awarded  wife  as  alimony, 163 

Trustee  Process: 

form  of  prayer  for  attachment  by, 351 

order  for  attachment  by, 364 


Unchastity: 

accusation  of,  as  cruelty, 59,  64 

as  ground  for  breach  of  promise  to  marry, 3 

[606] 


INDEX. 

[The  Figures  refer  to  Pages.] 

Uniform  Divorce  Laws: 

resolutions  of  National  Congress, 453  et  seq. 

Unkind  Language: 

as  ground  for  divorce, "" 

Unnatural  Contract: 

marriage  between  persons  of  same  sex, 21 

Utah: 

divorce  statutes, ^^^ 

marriage  statutes, 227 

statistics  of  marriage  and  divorce, 446 

V 

Vacation : 

after    subsequent    marriage, 172 

by  court  on  its  own  motion, 185 

death  as  bar  to, l^-^ 

grounds  for, l''^ 

171 

how  effected, ^'^ 

of  decree  of  divorce, 1' 1 

form   of   petition   for, 403 

of  other  state, 1^3 

who  may  apply  for, 1' 1 

Vagina: 

malformation  of, °'^ 

Validity  of  Marriage: 

as  affected  by  consanguinity  and  affinity 17 

law  of  place, 12 

Venereal  Disease: 

as  evidence  of  adultery, 46 

as  ground  for  annulment  of  marriage, 24 

communicating   of,   as  cruelty, 61 

Venereal  Itch: 

communicating  of,  as  cruelty, 61 

Venue : 

form  of  motion  to  change, 375 

of  suit  for  annulment, ^^ 

1-  120 

divorce,        ^"^ 

[607] 


INDKX. 

[The  Figures  refer  to  Pages.] 

Verification: 

of  libel I'-'l 

Vermont: 

divorce  statutes, 331 

marriage  statutes, 228 

statistics  of  marriage  and  divorce, 446 

Vile  Language: 

use  of,  as  ground  for  divorce, 96 

Violence : 

apprehension  of, 59 

Virginia: 

divorce  statutes, 333 

marriage  statutes, 229 

statistics  of  marriage  and  divorce, 447 

Voidable  Marriage: 

effect  of, .     .     16 

ratification  of 16 

statutes  as  to, 193  et  seq. 

Void  Marriage: 

effect  of, 16 

statutes  as  to, 194  et  seq. 

Voluntary  Separation: 

as  bar  to  divorce, 40 

W 

Washington: 

divorce  statutes, 335 

marriage  statutes, 230 

statistics  of  marriage  and  divorce, 448 

Wasting  of  Estate : 

what  constitutes, 70 

West  Virginia: 

divorce  statutes, , 337 

marriage  statutes, 230 

statistics  of  marriage  and  divorce, 449 

[608] 


IXDEX. 

[The  Figures  refer  to  Pages.] 

Whipping: 

as  cruelty, 61 

Wife: 

allegation  of  impotency  of, 360 

duty  of  husband  to  support, 150 

liability  of  estate  of,  for  counsel  fees, 153 

husband  for  support  of, 79 

property  awarded  to,  as  alimony,  trustee  for, 163 

protection  of,  pending  suit  for  divorce, 129 

refusal  to  follow  husband 78 

right  in  property  after  divorce 187 

to  insurance  after  divorce, 187 

to  resume  maiden  name  on  divorce, 147 

Wilful  Desertion: 

as  ground  for  divorce, 73 

Wisconsin: 

divorce  statutes, 339 

marriage  statutes, 231 

statistics  of  marriage  and  divorce, 450 

Withdrawal : 

of  offer  of  marriage, 2 

Witness: 

affidavit  of  inability  to  attend  court, 398 

party  as 132 

to  service  of  process, 124 

Writ  of  Protection: 

petition  for, 399 

Wyoming: 

divorce  statutes, 341 

marriage  statutes, 232 

statistics  of  marriage  and  divorce, 451 

Y 

Young  Children: 

evidence  of, ....  ,    .    .     .  134 


39  [609] 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


I 


LAW  LIBRARY 
UNIVEaSITY  OF  rATTPrkwxTTjp 


,  UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  798  468    5 


Univers: 
South 
Libi 


